M (a child) , R (on the application of) v Sheffield Magistrates' Court [2004] EWHC 1830 (Admin)

Case No CO/1162/2004[2004] EWHC 1830 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday 27 th July 2004
Strand,
London, WC2A 2LL
Before
THE HONOURABLE MR JUSTICE NEWMAN
Between
THE QUEEN (on the application of “M” a child proceeding by his litigation friend and grandmother, Jean Wild)ClaimantSHEFFIELD MAGISTRATES’ COURTDefendantSHEFFIELD CITY COUNCILInterested Party
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Anesh Pema (instructed by Mundy Coutts-Wood) for ClaimantMr Simon Vaughan (instructed by Sheffield City Council) for Interested Party
Judgment
[1]This application for judicial review raises an important point in connection with anti-social behaviour orders. It highlights circumstances where a conflict of interest will arise when a local authority, having parental responsibility for a child under the Children Act 1989, exercises its powers under the Crime and Disorder Act 1998 to apply for an anti-social behaviour order (“ASBO”) against the child in its care.[2]Under section 1 of the Crime and Disorder Act 1998 a local authority is a “relevant authority”, having the power to make an application for an ASBO. Under section 22 of the Children Act 1989 a local authority has a duty to “safeguard and promote [the] welfare of a child in its care”. The “welfare” of a child in care may or may not be furthered by the making of an ASBO but the interests of the child in the decision making process and in the court process must be protected. Despite the obvious potential for a conflict of interest to arise, the issue has, so far as the court has been informed, never been addressed. It has not received attention in any Home Office guidance issued to local authorities. In the current guidance:
“A Guide to Anti-Social Behaviour Orders and Acceptable Behaviour Contracts”, the Home Office draws attention to the duty to assess children’s needs arising from section 17 of the Children Act 1989 and observes (page 111): “The assessment of the child’s needs should run in parallel with evidence gathering and the application process”
. This being a reference to the ASBO process. The potentiality for conflict is not alluded to in the guidance. The existence of concurrent duties was pointed out by Richards J in R (AB & SB) v Nottingham City Council [2001] EWCA Admin 235 (para 48).[3]As originally formulated, this application raised an issue as to whether a local authority could ever apply for an ASBO in respect of a child in its care. This root and branch attack upon the local authority’s exercise of powers was, in my judgment, correctly not pursued. As it became apparent in the course of argument, the facts of this case, which will be likely to be mirrored in many others, demonstrate that measures must be devised to prevent a breach of the rights of a child in care occurring in connection with an application and the court process for an ASBO.

The Facts

[4]“M” was born on the 2nd January 1989. On 19th December 1995, aged 6, he was made subject to a care order under section 31 of the Children Act 1989 and was received into the care of Sheffield City Council. Since then his mother and Sheffield City Council have shared parental responsibility. He was initially placed in various residential care homes across the country until 1999 when he was placed with his maternal grandmother. He stayed for a number of months and then went to live with a paternal aunt. Considerable problems then arose. There was a considerable degree of offending and, as a result, he was placed again in a number of residential units. He absconded from all these placements, invariably returning to his family. He was returned again to his maternal grandmother in February 2001, on a temporary basis. At all material times since he has remained so placed, but the temporary character of the placement has not been regularised to meet with the reality of the position. The relationship of his grandmother with the Sheffield City Council has not always been harmonious.[5]The summons issued in the Magistrates’ Court by Sheffield City Council (“the County Council”) alleges that between 11th July 2001 and the date of the summons, namely 15th October 2003, at various locations within the Sheffield area, “M” had behaved in an anti-social manner. Whilst the summons in its general part makes such an allegation, the description of acts listed in the summons concern allegations of conduct occurring between 17th April 2003 and 17th September 2003. It is unnecessary to detail each and every allegation. Suffice it to say that they disclose a catalogue of serious offending, as well as serious anti-social behaviour. Some of the allegations became the subject of charges and were proved in court. For example, on 30th May 2003 the Sheffield Magistrates’ Court placed him on bail in connection with allegations involving an attempt to steal a motor vehicle. On 16th July he pleaded guilty to the lesser offence of interfering with the motor vehicle and he was then placed on an intensive supervision and surveillance programme (ISSP) which was attached to a supervision order which had been made earlier in May 2003. This order and the ISSP condition were revoked on 21st October 2003 following “M” being convicted of a common assault, the possession of cannabis and breaching the order. At the same date he was made the subject of a curfew order at the request of the ISSP team and he was then sentenced to a further ISSP programme.[6]The terms of the ISSP required his attendance at a named school, as well as attendance on a programme for summer activities. His first experience of attending school in a structured sense was in June 2003 when he experienced bullying at the school. Although he continued to breach conditions, it can be seen that since the conditions of an ISSP were imposed, as part of his sentence, his offending pattern became less frequent and less severe.[7]The documents disclose that the institution of ASBO proceedings in respect of “M” was considered for the first time at a case conference of the ASBO panel on 4th February 2003, but a statutory review, by those responsible for his care, had taken place on 16th December 2002. On the occasion of the review it was noted that:
“His current placement is not meeting his needs for adequate control and protection”
. Further that :
“He is a highly vulnerable young person and the local authority need to actively exercise parental responsibility in gaining control of “M” and promoting his welfare”
. Further that :
“Consideration should be given to the need for a secure accommodation order”
. Yet further:
“In the immediate term an alternative placement should be sought. He needs a residential placement offering him boundaries and well structured regime”
. In conclusion it was noted : “The reviewing officer will send an urgent memo detailing her concerns to the team manager and service manager within social services”.[8]The Home Office Guidance, to which I have referred, makes three points in its section on “Court Procedures for Juveniles” which are material to the position which prevailed for M after the December and to the considerations of the ASBO panel review. It states:- “The court will require information about his or her background, home surroundings and family circumstances”. Secondly:- “The assessment of the child’s needs should run in parallel with evidence gathering and the application process”. Thirdly:- “It is essential that parents and guardians take responsibility for the behaviour of their children”.[9]A number of representatives attended the December review including, in particular, Gail Northcliffe, the social worker discharging parental responsibility on behalf of the local authority for M. In addition there were representatives from the youth offending team (“YOT”), a tutor, as well as a senior teacher and others from the school which M had attended. Neither M’s mother nor his grandmother attended, but both had been invited.[10]At the meeting on 4th February 2003 Gail Northcliffe was present. No members of the YOT team, nor anybody from the school, although invited, attended. The other persons present included police officers and representatives from the Sheffield City Council housing department, who were promoting the proposal that an ASBO should be applied for. The contribution from Gail Northcliffe is recorded. She informed the meeting that she had only been working with M since December 2002. She also stated that M could be suffering from Attention Deficit Hyperactivity Disorder (ADHD) and that it had been suggested that M’s grandmother should see whether his General Practitioner (GP) would refer him for assessment. Mr Geoff Holland, the local education authority attendance officer, informed the meeting that M had not attended school for about 12 months, that they had attempted to make contact with him but the school found it difficult engaging with him. The notes then record “All agencies agreed that an ASBO should be pursued. Gail Northcliffe stated that she agreed to the application in principle but would like to see what actions YOT are currently engaged with”. Among the number of agreed actions and timescales it was agreed : “Geoff [plainly Geoff Holland] is to investigate what statement of need M currently has and if this can be amended to include an assessment for ADHD”.[11]The evidence does not reveal whether Gail Northcliffe was given prior warning of the proposal to consider an application to apply for an ASBO against M. An important question arises as to whether the person responsible for the parental care of a child in care should, as a matter of principle, attend such a meeting. Yet further, if attendance is appropriate, whether that person should participate and express approval or disapproval for the proposal. I am not concerned to review Gail Northcliffe’s actions, nor have I heard enough to take a position or criticise her, but I can see that she was placed in a difficult position and was required to take part in a decision capable of being adverse to the interests of M, when as recently as December steps to protect his position had been discussed and agreed upon.[12]On 3rd March 2003, namely about a month later, a further statutory review in respect of “M” was held. Those attending included Gail Northcliffe, YOT representatives and representatives from the school. The purpose of the review was to ensure that M’s day-to-day care needs were being met and that the care plan was appropriate. Under the heading ‘legal status and legal proceedings’ the following is recorded in the note of the meeting:- “M is co-operating with his YOT team worker and his supervision order. The housing department have applied for an anti-social behaviour order in respect of M. Chris and Gail [Chris being in the YOT team] remarked that at present “M” feels persecuted by the police, as they appear to be keeping watch outside his house. M is to be encouraged to contact his solicitor on this matter”. Under the heading ‘health’, the following is stated: “Gail feels that M is in good physical health. His grandmother wonders whether he may have attention deficit hyperactivity disorder (ADHD). She has been advised to speak to M’s GP about a possible assessment”.[13]A number of points arise for comment from this record. First, the housing department had not applied for an ASBO. It had not even decided to apply for an ASBO. It had reached a conclusion in principle that one should be applied for, but consideration had to be given to a number of factors, including the question whether it could be established that an order was necessary. Further, as appears from the record of the panel meeting (paragraph 9 above), Geoff Holland was to investigate M’s statement of needs and see whether it was to include an assessment for ADHD. Secondly, Gail Northcliffe had “suggested on 4th February that M may be suffering from ADHD”, whereas her position at this meeting appears to differ. It is the grandmother’s views (not hers) which are recorded. Thirdly, and more significantly, the review team simply recorded the position in connection with the ASBO application. It was an application touching M which called for anxious, detailed and prompt consideration.[14]The outcome of the meeting is summarised and recorded. In short, M was to remain in care but steps were to be taken to assess whether his grandmother should be authorised to become a foster carer. The assessment was to be completed by the end of March 2003. His grandmother was to be encouraged to take him to his general practitioner regarding the suspicions she had about M having ADHD. The need for M to see a solicitor is recorded as being in connection with “….the alleged police presence near his house on a regular basis”, not in connection with the proposed application for an ASBO. Indeed nothing is recorded in connection with the housing department’s intention to apply for an ASBO.[15]The ASBO panel held a conference on 24th April 2003. It was attended by representatives of the local authority housing team and police officers. Among potential subjects for an ASBO was M. The panel agreed that anti-social behaviour involving M had been proved , “but the case is to come back before the panel next month after report has been done by social services to decide if the second limb, namely is an order necessary, has been proved”. The record includes the following note:- “His social worker believed he was suffering from ADHD and recommended that his grandmother get their doctor to refer him for an assessment”.[16]The restraint shown by the panel in waiting for a report from Social Services is to be commended, but the process adopted to obtain the information was inappropriate. The next panel meeting was scheduled for 22nd May 2003. In preparation for that meeting, Gail Northcliffe prepared the report from social services. It is headed:
‘Report for ASBO Panel’ and is on a proforma used by the ASBO team. It was not appropriate for the report required from social services. The report takes the form of answers to a series of questions. The questions included the following: Question: “Are there health/disability problems that may be relevant in this matter?” Gail Northcliffe responded : “M is to be assessed for ADHD. A referral has been made to ……… by his GP”. Question: “Specify action that you have already taken to try and deal with the problem of anti-social behaviour”. Answer : “Have had regular sessions with M and his nan to get him back into school and try to keep him out of trouble”. Question : “What further action are you intending to/do you think may be appropriate to try and deal with the subject’s involvement in anti-social behaviour?” Answer : “Try to get other projects involved such as …….. project”. Question : “What warning has been given to the subject about his/her behaviour? Have there been written or verbal warnings and are there records of these warnings?” Answer : “I have not given warnings in terms of ASBO. Specific discussion has been had re behaviour and continuation of his placement”. Question : “Has the subject been warned that they may be subject of anti-social behaviour order?” Answer : “I told M about this when housing approached me. Housing have not discussed this with M and his Nan though as per above I am aware”. Question : “What anti-social behaviour has been carried out since this warning was issued?” Answer : “Not sure. Some arrests have been made, I think”. Question “Is the person with parental responsibility co-operative in trying to deal with the anti-social behaviour?” Answer : “His Nan comes for him. She attends court and police station with him. On the whole, she tries to work with agencies”. Under the heading ‘Any other relevant information’
Gail Northcliffe wrote:- “I do feel that an ASBO may not solve M’s problems. We are making some progress as he is now seeing professionals and wanting to be in school which he was not doing when I took over the case at Christmas”. Question:
“Are there health/disability problems that may be relevant in this matter?” “M is to be assessed for ADHD. A referral has been made to ……… by his GP”
. Question :
“What anti-social behaviour has been carried out since this warning was issued?”
[17]The report from social services should not have been constrained and directed by the ASBO panel statement. As proposed, the panel met on 22nd May 2003. No one from the Social Services Department was present but it seems clear that they had the report from Gail Northcliffe. The response of the meeting to the report is recorded as follows:- “Louise [tenancy enforcement team representative] pointed out that although M’s social worker didn’t support the application, the purpose of an ASBO is to protect other people suffering from M’s behaviour”. Having agreed at the previous meeting that anti-social behaviour had been proved and notwithstanding the information received from social services, the panel agreed:- “that an order was necessary and it was now appropriate to proceed with an ASBO application”. It follows that the panel’s consideration of the issue of necessity concentrated on the need to protect others and did not extend to the question whether it was in the interests of M that an application be made.[18]There were other reports from other agencies before the panel, for example, education. A Mr Gallivant, in answer to the question “Are there health/disability problems that may be relevant in this matter”, responded “Not to my knowledge”. To the question :
“What further action are you intending to take or do you think may be appropriate to try and deal with the subject’s involvement in anti-social behaviour?” the response was “Consideration for an ASBO”
. The report from housing, in answer to the question “What warning has been given to the subject about his or her behaviour? Have there been written or verbal warnings and are there records of these warnings”, the author responded “Prolific offender”. The question: “Has a needs assessment been carried out in respect of the child and his or her family? Please give details of the provision of services and any result that this has had”, there is simply the answer “Yes” with no other details. The conclusion reached was that an ASBO should be applied for and that the housing department should lead in making the application.[19]Having regard to the detailed information and assessments which were under consideration by social services, the extent of the information and detail before the panel must be regarded as deficient. No application was made to the court until 15th October 2003, nearly five months after the decision to proceed. There is no record of any continuing consideration being given to M’s position. There is no record of any contact with social services. However, when the summons came to be issued, owing no doubt to the time limit requiring summonses to be issued within six months, twenty-one incidents of anti-social behaviour involving M were relied upon occurring between April and September 2003. It follows that, because of the delay, all the offending actually relied upon for the ASBO took place after the decision to apply for it and after M had appeared on a number of occasions in the Youth Court in connection with his offending. These events comprised significant factors relevant to the appropriateness of applying for an ASBO.[20]Six days after the issue of the summons for an ASBO the Sheffield Youth Court had to sentence M. It had the benefit of a pre-sentence report prepared by Sheffield City Council’s YOT officer, Claire McConaghy, who also prepared a breach report. The recommendations and, as a result, the sentence and order passed by the Sheffield Youth Court renewed and strengthened the existing ISSP order and imposed a curfew. Further, it contained an intervention plan which would include family support for the grandmother and liaison with M’s care officer. The conclusion of Ms McConaghy is recorded as :
“Offending pattern has become less frequent and severe”
. There is nothing to show this was taken account of either by the social services department or the housing department carrying responsibility for the ASBO application.

The ASBO proceedings

[21]The first court proceedings took place before the District Judge on 23rd October 2003. The case was adjourned for a response from M who was legally represented.[22]On 10th November 2003 M’s response and summary of his case was served on the Magistrates’ Court and City Council.[23]On 11th November 2003 a further statutory review by the Social Services Department took place. The remarks made at that meeting were generally positive about M’s progress and his behaviour and his adherence to the ISSP order. The fact that an ASBO application had been made was simply noted. On 12th November M’s solicitors wrote to the ASBO team requesting full disclosure of the social services records and asking for details of the steps taken to resolve the issue with M, prior to the application to the court for the ASBO being made. On 14th November M attended court with his grandmother. On that occasion Sheffield City Council’s confirmed that the summons and the application had been served on the social worker for M, namely Gail Northcliffe. The District Judge expressed concern that nobody was there from the social services department to support or accompany M and the case was adjourned for 28 days. The judge was right to express concern.[24]By a letter dated 8th December 2003 the solicitor for M was informed that M’s current social worker, now Gerard Morgan, would attend court. Gail Northcliffe, unfortunately, had ceased to be responsible for M.[25]By a letter dated 7th January 2004 Mark Webster, the Director for Legal and Administrative Services and Head, in control of the ASBO team at Sheffield City Council, wrote to M’s solicitors enclosing documents from the YOT team relating to his ISSP. The letter went on to state : “I also enclose a statement from Claire McConaghy, M’s youth offending team worker. Please would you note that YOT staff are employed by the local authority and, as such, are my clients, therefore you should not approach them directly in connection with this application. I hope to provide you with the social services disclosure shortly”.[26]In his witness statement the solicitor for M records that the restriction on access to YOT staff presented a handicap in the conduct of his defence to the application for the ASBO. Further, it created a strain in the relationship between M and Ms McConaghy because it became known to M that she had made a statement supporting the local authority in the ASBO application.[27]M’s solicitor needed to have access to M’s social worker who, by this time, was Mr Gerard Morgan. He was a potential witness. The social services files would be in evidence and someone would have to speak to it. Further, the outstanding issue in relation to ADHD made contact with the social worker particularly material. Further, M was entitled to have the opportunity of being supported in connection with the application by the local authority. Mr Webster responded to the enquiry by a letter dated 11th February 2004, in the following terms: “With regard to your request to speak to Gerard Morgan as a potential defence witness, Gerard will agree to meet with you. He has requested that his line manager and a legal representative are present at any meeting. Please could you suggest a time when this meeting could take place so that I can check his availability, obviously there is very little time left before the final hearing”.[28]M’s solicitor, although not happy with the restriction, attended at the offices of the Sheffield City Council Social Services Department on 11th February, in company with a clerk, who was to take notes of the meeting. Mr Morgan was present with his legal representative and his line manager. However, his representative was Ruth Chisholm, who was also the legal representative conducting the ASBO application on behalf of the Council. In the course of the meeting, Mr Morgan stated that he was not prepared to be a witness on behalf of M, but he would be a witness for the local authority, which he said, was his employer. Mr Morgan obviously regarded himself as being on “the other side” in this application. It is not clear why he should have done so because Gail Northcliffe had not considered the application would solve his problems and since that date his offending behaviour had improved. The solicitor felt bound to inform M of the position which had been adopted by Mr Morgan.[29]By this time, an indication had been given of an intention to take a preliminary point on behalf of M about the conflict of interest to which the application gave rise.[30]The preparation of the case and the conduct of the proceedings gave rise to difficulties. M was unable to call as a witness anybody from the local authority discharging parental responsibility on his behalf. Further, by this time, M himself was distrustful of the social worker who fulfilled that responsibility.[31]The hearing was on 16th and 17th February 2004. M had been to see his GP and had a consultation fixed with a paediatrician for late February 2004.[32]The time required for argument on the preliminary point resulted in an adjournment. Further request was made for an adjournment pending an application for judicial review, but the magistrate refused that application. The hearing of the substantive application was adjourned to 31st March 2004. M’s solicitor was informed, for the first time, that Sheffield City Council intended to apply for an interim ASBO order that day. Despite opposition from M’s solicitor, the magistrate granted it. The order made has now expired, but on 16th March 2004 when he granted permission to apply for judicial review, Moses J. stayed it.

The Issues

[33]The issues fall for consideration in two parts. First, how the interests of a child in care can be protected when the authority responsible for the child’s care makes an application for an anti-social behaviour order against the child. Secondly, whether it was appropriate to apply for an interim ASBO.

The Legislation

[34]Section 17 of the Children Act 1989, in its material parts, provides as follows:- “(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)—(a) to safeguard and promote the welfare of children within their area who are in need; … (10) For the purposes of this Part a child shall be taken to be in need if— (a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or … and "family" , in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living”. (a) to safeguard and promote the welfare of children within their area who are in need; … (a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part; (b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or …[35]Section 22, in its material part, provides as follows:- “(1) In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is—(a) in their care; or …. (3) It shall be the duty of a local authority looking after any child— (a) in their care; or …. (a). to safeguard and promote his welfare; and …. (4) Before making any decision with respect to a child whom they are looking after, or proposing to look after, a local authority shall, so far as is reasonably practicable, ascertain the wishes and feelings of— (a) the child; (c) any person who is not a parent of his but who has parental responsibility for him; and (d) any other person whose wishes and feelings the authority consider to be relevant, regarding the matter to be decided. (5) In making any such decision a local authority shall give due consideration— (a) having regard to his age and understanding, to such wishes and feelings of the child as they have been able to ascertain;(b) to such wishes and feelings of any person mentioned in subsection (4)(b) to (d) as they have been able to ascertain; and …. (6) If it appears to a local authority that it is necessary, for the purpose of protecting members of the public from serious injury, to exercise their powers with respect to a child whom they are looking after in a manner which may not be consistent with their duties under this section, they may do so”.[36]Section 33(1) is in these terms:- “Where a care order is made with respect to a child it shall be the duty of the local authority designated by the order to receive the child into their care and to keep him in their care while the order remains in force … (3) While a care order is in force with respect to a child, the local authority designated by the order shall— (a) have parental responsibility for the child….” (a) have parental responsibility for the child….”[37]Section 1 of the Crime and Disorder Act 1998 as amended and in so far as is relevant provides as follows:- “Anti-social behaviour orders 1) An application for an order under this section may be made by a relevant authority if it appears to the authority that the following conditions are fulfilled with respect to any person aged 10 or over, namely -(a) that the person has acted, since the commencement date, in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and(b) that such an order is necessary to protect relevant persons from further anti-social acts by him. 1(A) In this section and sections 1(B) and 1(E) "relevant authority" means (a) the council for a local government area (b) the chief officer of police of any police force maintained for a police area; … 1(B) In this section “relevant persons” means (a) in relation to a relevant authority falling within paragraph (a) of subsection 1(A) persons within the local government area of that council; (b) in relation to a relevant authority falling within paragraph (b) of that subsection persons within the police area;… (a) that the person has acted, since the commencement date, in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and (b) that such an order is necessary to protect relevant persons from further anti-social acts by him.

(b) of that subsection persons within the police area;…

[38]Section 1(D) provides for interim orders to be made upon application. Subsection (2) is in these terms:- “If, before determining an application to which this section applies, the court considers that it is just to make an order under this section pending the determination of that application (“the main application”), it may make such an order”.[39]Section 1(E) provides for consultation requirements and stipulates that:- “(2) Before making an application to which this section applies, the council for a local government area shall consult the chief officer of police of the police force maintained for the police area within which that local government area lies.”[40]The Magistrates Court (Anti-Social Behaviour Orders) Rules 2002, SI No. 2784, provide for interim orders to be made without notice being given to a defendant. Rule 5 provides:- “(1) An application for an interim order under section 1D may, with leave of the justices’ clerk, be made without notice being given to the defendant. (2) The justices’ clerk shall only grant leave under paragraph (1) of this rule if he is satisfied that it is necessary for the application to be made without notice being given to the defendant.”

Issue 1

[41]The statutory purpose underlying the jurisdiction of the Court to make an ASBO is to protect the community from repeated conduct amounting to anti-social behaviour. Its imposition may deter the culprit and to that extent may be of benefit to him or her. Thus there may be a concurrence of interest, between the applicant and the person bound by the order but this limited potential for symmetry, whilst relevant, cannot prevent a conflict of interest arising in the circumstances under consideration.[42]Where a local authority applies for an ASBO it discharges a duty which it owes to the residents and locality affected by the anti-social behaviour. It is not concerned to consider whether the order will benefit the person to be bound. Any failure to apply for an order on this ground could give rise to legitimate complaint by those the Act was designed to protect.[43]Where a local authority discharges duties in connection with a child in its care it is bound to act so as to promote the welfare of the child in question and must consult with the child and others and give due consideration to the wishes and feelings of those consulted (see section 22 of the Children Act and subsection 4 in particular).[44]The civil jurisdiction for controlling disorderly behaviour comprised by the Crime and Disorder Act serves an important social purpose and its efficacy is, in part, derived from the partnership between various agencies which underpin its operation. The “parents” of a culprit are not within the partnership of housing, police and the YOT team. An order brings a person within the control and discipline of the law and the courts, placing that person at risk of a penal sanction. The risk of penal sanction and the range of penalties in the event of breach are serious and will regularly involve loss of liberty (see section 1(1) of the 1998 Act – six months or a fine or both on summary conviction. Five years or a fine or both on conviction on indictment). Any parent, whether natural or statutory, and no matter how determined to bring discipline to bear on a child, would hesitate to place their child at risk of detention in custody.[45]It follows that I have no doubt that a conflict of interest arises for local authorities in the circumstances under consideration in this case. On the facts, as they occurred through the decision making process and in the court proceedings, I am satisfied that the conflict gave rise to prejudice to M. However, for the reasons which I shall endeavour to give, I am satisfied that the conflict does not disempower a local authority and preclude it from making an application under the Crime and Disorder Act against a child in its care. Since this extreme contention has not been pursued it will be sufficient to state my reasons in summary form.[46]Section 22(6) of the Children Act provides:- “If it appears to a local authority that it is necessary, for the purposes of protecting members of the public from serious injury, to exercise their powers with respect to a child whom they are looking after in a manner which may not be consistent with their duties under this section they may do so”. Notwithstanding the threshold of “serious injury” (which it is not suggested will, as a matter of course, be met in connection with an ASBO) the Act contemplates the authority remaining empowered to act to fulfil its duty to the public.[47]Further, to negative one statutory power in favour of another, whilst theoretically a legal possibility, would be a conclusion of last resort, where compatibility can be met by the adoption of appropriate measures and procedures.

What should be done?

[48]It is not possible for this court to draw up the detailed measures and procedures which will be required in order to avoid the conflicts to which this case has given rise. The best the court can do is to identify the problem areas and draw attention to the ambit of the legal principle in play.

Consultation

[49]A decision to apply for an ASBO is a “decision” within the meaning of section 22(4), which subsection requires the authority to ascertain the “wishes and feelings” of the child and any person who is not a parent of his but who has parental responsibility for him and any other person whose wishes and feelings the authority consider to be relevant. In this instance the “wishes and feelings” of M, his grandmother, his mother and the social workers discharging parental duties on the part of Sheffield City Council had not been obtained. The Report for the ASBO panel prepared by Gail Northcliffe discloses minimal contact and does not reveal that she was aware of the need, according to section 22(4), for the subsection to be complied with. The fact that responsibility for taking the lead on the application for an ASBO was with “housing” cannot absolve the authority from complying with section 22(4) before it makes a decision. That can only be done by officers, who are discharging care duties for the child in question, taking the necessary steps and reporting in full to the authority.[50]The material should be prepared and presented not as though it is a report for the ASBO panel, but as a report for the authority on behalf of the child. The ASBO panel should consider the material before it proceeds to making an application to the court. This is because the considerations to which section 22(4) will give rise are likely to be relevant to the question whether it is necessary to apply for an ASBO.

The ASBO decision

[51]If, having seen the full report, independently drawn up by the social services/workers within the authority, the “lead” section decides to apply for an ASBO, that decision must be communicated to all concerned. The relevant social worker should not participate in the decision to apply for an ASBO. Exceptional circumstances could require clarification or a new matter to be the subject of report. The danger in participating is the risk it would create to actual independence and the loss of perceived independence, particularly on the part of the child. Written reports would meet most needs.

Preparation for and Attendance at Proceedings at Court

[52]The social services/workers for the authority should be available to assist and be witnesses at court, if requested as witnesses for the child in question. No court should (save where exceptional circumstances prevail) make an order against a child in care without someone from the social services who can speak to the issue.[53]Where social services wish to support an ASBO application, after detailed consideration with the child and relevant persons, different considerations may apply. The court has insufficient information to detail the procedures which should be adopted nor has it insight into the likelihood of an ASBO application being supported.[54]The solicitor having responsibility for the authority’s ASBO application should not attend meetings with the child’s solicitor and social services representatives. The need for an attendance of a solicitor for the officer should be rare.[55]Once a decision has been taken to apply for an ASBO there should be no contact on the issue between the ASBO team and the social services section without the solicitor for the child being informed and consenting.[56]I have avoided prescription. The administration within individual authorities is likely to differ. The exact status of the participating sections within an authority are outside the knowledge of the court. The exact composition and status of the YOT team is not within the court’s present information.

The Interim Order

[57]It should not have been granted without notice. Notice at the hearing in the circumstances of this case was insufficient. It should not have been granted where there was no one present from social services. The order appears to have been drawn without regard to the ISSP already in existence and the prevailing curfew. Orders should contain prohibitions directed to the anti-social behaviour. Care should be taken not to include by negative prohibitions what in truth amount to mandatory orders to do something specific. In this instance, a condition of residence was imposed by prohibiting M from living other than at one address. It is unnecessary in this case to decide whether the order as granted was outside the Act, but it is to be noted that the ISSP order had already included a number of relevant conditions.

The Future

[58]There can be no further progress in the ASBO application or any application for an interim order until the steps taken above have been completed. The grounds upon which the order was based could well have been superseded by events. In all the circumstances, the interim order having expired, no relief is necessary. The terms of the judgment should serve to protect the future position.[59]Whilst it has not been necessary to give relief in this case due to the expiry of the order and the guidance given, the case raises important issues which other local authorities should be made aware of. Therefore, permission is granted for this judgment to be publicised.

Cited in 1 later judgment