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Published in YVJ, January
http://youthvoicejournal.com/
© IARS 2014
-ISSN (online): 2056-2969
Muna Sabbagh
Legislative imbalance regarding parental responsibility of young offenders.
Abstract
The recent judicial review brought against the Home Secretary in relation to her refusal to
revise Code C of PACE 1984 brings into question the legislative inconsistencies surrounding
young people and their parents coming into contact within the youth justice system. The
case below identifies the controversy of parental responsibility towards young offenders.
This is highlighted through the inconsistencies of current legislation against parents. There is
a need to support parents in preventing their children becoming embroiled into the youth
justice system. Evidence of this need can be found in scientific and social research, which
determines the increased risk taking behaviour a young person may experience throughout
the normal adolescent developmental stage. This supports the requirement for a different
approach towards determining parental responsibility as is currently provided by the state.
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Introduction
Loss of liberty at any age is a daunting prospect and to not have the support from people
who have your best interests at heart can have tragic consequences. This has been proved
by some young offenders being subjected to an overnight or lengthy detention in a police
cell without their parents or a carer being present. The significance of the case review below
highlights a need to address legislative provisions found in international law, which provide
that the rights of a child are met through fair and just procedures. Clarifying these rights
within domestic law could avoid legislative ambiguities that have had adverse consequences
on the young person and their families.
The case of R. (on the application of HC (a child)) v Secretary of State for the Home
Department& Commissioner of Police of the Metropolis [2013] EWHC 982 (Admin), which
will be referred to as HC throughout the article,brings to the fore the legislative
inconsistencies within the youth justice system of England and Wales. In a narrow context it
exposes the discrepancies surrounding the determination of a young person and an adult in
relation to detention in police custody. Its broader context it highlights the adultification of
young offenders through current legislative inconsistency.
The controversial aspect to this case is how Code C of the Code of Practice under the Police
and Criminal Evidence Act 1984(PACE) determines a juvenile as being a person under
seventeen, which means a young person from the age of seventeen, will be treated as an
adult whilst in police detention. This is of significance not least for its incongruity but
specifically in light of the serious consequences some of these detentions have had on the
young person and their families.
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This article will provide an examination of the case and the decision made in connection
with the application for a judicial review towards the Home Secretary and the amendment
of the Code. It will focus on the states requirement for parental responsibility toward young
offenders as enforced through statute and its inconsistencies. The following analysis of the
legislation cited in the judgment towards the Home Secretary will substantiate the
legislative imbalance towards enforcing parental responsibility. The case concerns a judicial
review of the Home Secretary’s refusal to revise Code C of PACE. The Code is possibly the
only remaining piece of legislation that recognises a seventeen year old as an adult within
the criminal justice system.
Methodology
The research methodology for this article was a qualitative examination of the issues
surrounding the legislative inconsistencies of parental responsibility towards young people
whilst in police detention. The evidence examined has been drawn from practitioners and
academics within the area of youth offending specifically in relation to parental
responsibility. The data selected was based on three areas within the youth offending field.
They are charitable organisations, scientific research data and academic research from a
criminological perspective.
This analysis of work carried out by charitable organisations included the legal
representation provided to the young person in the case of HC by Just for Kids Law and the
Howard League for Penal Reform. Along with legal representation these bodies provide
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evidence based research for policy reform within the criminal justice system, the former
focusing on the youth justice field alone. As has been established this case has had a
significant impact into the amendment of legislative provision against young people in
detention. The evidence provided by these bodies focuses on a youth centred approach
towards policy reform within the youth justice system.
The next two areas examined were the findings from both scientific and criminological areas
within adolescence and youth offending. The first being the work carried out by
Blakemore(2008), which provided a scientific perspective on the need to consider the
developmental changes in a young person’s mind and correspondingly their needs if caught
up in the youth justice system. Blakemore determines the correlation of biological evidence
and the impact of the learning environment the young person is in. This means that in terms
of policy reform there is evidence from a multidisciplinary forum. This is further
demonstrated in the analysis of work carried out by youth offending academics and
criminologists, who have undertaken both quantitative and qualitative research to establish
the significance of parental responsibility towards a young offender (Arthur et al).
Finally the case of HC was selected in order to provide a platform for discussion and
examination into the legislative inconsistencies surrounding young people caught up in the
youth justice system. Furthermore its relevance was to highlight the ambiguity surrounding
parental responsibility of a young offender.
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Case facts
The facts of the case HC are that at the age of seventeen the claimant was detained under
suspicion of robbery for over 11½ hours, without an appropriate adult. The claimant had
asked for his mother to be present but was refused as it was believed by the officer in
charge that exercising the claimants rights for an appropriate adult to attend would obstruct
the recovery of the alleged stolen property, as authorised under s56(1) of PACE. This being
the defence of the second defendant in the judicial review in that the police acted correctly
and in accordance with the provisions set out in the Act. However the court took the
decision to base this judgment on the Home Secretary’s refusal to amend the Code as
opposed to the actions of the police as they had followed statutory regulations.
The consequences of the police actions in isolation though do highlight a need for further
debate regarding the requirements on the police to make decisions based on statute as
opposed to their own discretion. Specifically as in this instance the young offender had not
been in trouble before and was therefore not familiar with the procedures, which is
established through recent petitions to government on the need for revision to the code
due to the adverse consequences of its enforcement (Just for Kids Law,2013).
The Home Secretary did try and refute the claim by the police that their actions were
attributed to the statutory regulation. Her claim was that the police had the discretion to
address the needs of a vulnerable person whilst in their detention as provided by the
provisions from the statute. Of significance in this case was that the young person
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concerned had asked for his mother to be present and as stated above was refused but
offered a solicitor, as an appropriate adult. His refusal to have a solicitor present was based
on a fear that the advice provided would not be impartial. This issue of young people being
unable to communicate effectively with adults in authority is one that has been
substantiated by the medical profession in terms of neuroscientific and psychiatric data
(Blakemore, 2012 and Royal College of Psychiatrists,2006). Further examination of this
evidence will be provided below.
The issue of revision of the Code was to allow for the same protection towards seventeen
year olds as would be expected for a young person under this age. The Home Secretary
argued that it was not necessary to afford special protection for seventeen year olds whilst
in detention as their needs were catered for in the same way as an adult. She stressed that
everyone in detention was provided with the same consideration of their rights whilst in
detention.
She went onto establish that a line had to be drawn to determine an adult from a child. This
argument in itself contravenes statutory provisions currently in force, which will be
evidenced below.
Article 8 of the European Convention on Human Rights
The Home Secretary also maintained that Article 8 of the European Convention on Human
Rights( ECHR), which it was argued had been infringed towards the claimant, had not been
violated. This was due to the legislative enforcement procedure of proportionality by the
member states. She argued that the treatment of seventeen year olds as adults was
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proportionate, which meant that the code had been applied correctly by the state. The
court found though that the code did contravene Article 8 ECHR. This was specified by the
court in that a right to family life fell in the scope of maintaining a family relationship, which
in this instance had been denied due to the provision of the Code. This argument was
furthered by the inconsistency of the Code toward the provisions of the UN Convention on
the Rights of the Child (UNCRC), which expanded on the UK’s lack of duty towards its
ratification of international law and what could be seen as the Home Secretary’s failure to
consider the importance of the agreement.
Moreover from a domestic position the controversy raised in this case emphasizes the
state’s obligation to acknowledge the needs of the adolescent entering the youth justice
system. This is made even more significant in light of current trends towards recognising
scientific evidence when determining policy. Scientific evidence in collaboration with social
science research could better inform policy decision makers when formulating legislation.
Developments in neuroscience have enhanced the debate over the normal development of
adolescence and could contribute to a greater determination of the needs of the young
offender from early to late adolescence. Legislative developments within the youth justice
system and governmental policy have traditionally held the parents of young offenders to
account. The case above emphasises the contradictory element the Code has towards the
rights of a young person and their parents. An example is the case of Silver v United
Kingdom [1983] 5 EHRR 347 whereby it was determined by the ECHR that:
‘...the law must be sufficiently precise to enable the citizen to regulate his conduct; he must
be able to foresee the consequences of his actions.
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Parental responsibility of young offenders
The judgment was based on an analysis of the law in relation to the legal determination of
the age of a child and that of a young person. The Code determines an ‘arrested juvenille’ as
being under the age of seventeen. The court sought to illustrate the ambiguity of the Code
in relation to other statutory provision in place. This was achieved by drawing on specific
provisions of current legislation regarding young offenders. The first example is the Crime
and Disorder Act 1998 (CDA), which at its inception intended to introduce ‘... a coherent
youth justice system with the aim of preventing offending’. Within the Act s117 (1)
determines a young person as between the age of fourteen to eighteen.
This in itself created controversy for not providing special consideration for young adults,
specifically between the ages of 18 -21 (Fionda, 1999). This is of significance as it focuses on
the issue of recognising the risk taking behaviour of an adolescent and how this can
continue into early adulthood if the young offender is in an adverse learning environment.
Neuroscientific studies provide empirical evidence that risk taking is higher at the
adolescent stage of life and that the evidence must be corroborated with the learning
environment the adolescent finds themselves in (Blakemore, 2008).This is of relevance to
the above issue in that there is a recognition between biological and social research to
consider the needs of young people and young adults. This determination of the learning
environment in corroboration with neuroscientific data establishes the benefits of both
types of scientific research as opposed to producing a ‘dual use dilemma’ regarding the use
of neuroscientifc data in relation to youth justice (Walsh, 2011). However this ambiguity as
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to how to utilise this evidence is reflected in the current legislation towards young offenders
and their parents’ responsibility towards them.
For example the CDA also enforced the Parenting Order (PO) and Parenting Compensation
Order (PCO), which in relation to the above case emphasises the legislative stance towards
parental accountability for the young offender. However the courts view the sanction of a
PO as a last resort and would prefer the parents to enter into a voluntary agreement with
youth justice officials such as voluntary parenting programmes and parenting contracts
(Youth Justice Board, 2007). The CDA implemented the Parental Order in 2000 and the Anti-
Social Behaviour Act 2003 increased the duty of the court to administer a PO if there was a
realistic possibility of the anti social behaviour continuing by the child (Hansard, 2011). To
further substantiate the government’s requirement to establish parental accountability is
the 1997 White Paper, “No More Excuses — A New Approach To Tackling Youth Crime In
England and Wales” stated:
“Parents of young offenders may not directly be to blame for crimes of their
children, but parents have to be responsible for providing their children with proper care
and control. The courts need powers to help and support parents more effectively to keep
their children out of trouble.”
In relation to the case of judicial review the above emphasises the legislative recognition of
the parents’ duty towards the young offender. However, a further example of the legislative
ambiguity of the Code, as specified in the judgment, between young people and young
adults can be found in the Family Reform Act 1969, whereby the age of majority in England
and Wales was lowered to eighteen from twenty one years old. The Hansard debates from
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the Latey Committee report on the age of majority provide an example for the inconsistency
within the law:
‘...But the Committee made two exclusions. It says explicitly that it has not
considered any possible repercussions in the criminal law. It saw its task as being concerned
with the great majority of young people who keep the law, and not with the small minority
who break it.’(Hansard,1967).
This determines the importance the state puts on the individual in terms of property and
financial gain as opposed to those who may get caught up in the criminal justice system. The
government has a duty towards young people in terms of the collective responsibility as
recognised between the state, society and the family. Therefore if part of the states
obligation is provided through legislation then this has to be clear as determined by the rule
of law.
Such ambiguity is highlighted within the youth justice system as to the needs of young
adults and older adolescents. For example further legislation cited in the judgment above
regarding the inconsistency within various statutes was the Children Act 2004, whereby
provision for safeguarding and promoting the welfare of the child is to be taken into account
at all times as also stated in the UNCRC. This legislative provision was used as a strong
argument against the Home Secretary’s defence. Furthermore the Criminal Justice Act 2003
determines a young person as under the age of eighteen as does the Legal Aid and
Sentencing and Punishment of Offenders Act 2012. The provisions within these Acts
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accentuate the statutory inconsistency in domestic law regarding its obligation within
international law.
Comparative international youth justice law and parental responsibility of young
offenders
International law provides clarity as to the inconsistencies in relation to making parents
accountable for their child’s offending that were highlighted in the case above (HC). It
determines the state’s role as providing minimum intervention but also ensuring support
and provision of resources within their families and community (Arthur, 2010:36).
The implementation of these provisions into domestic law is unclear specifically when
political gain is at the forefront of the government’s aim. Countries like Canada have
attempted to adhere to the provisions determined by the UNCRC with the implementation
of the Youth Criminal Justice Act 2003 but have fallen short of ensuring a welfare/
developmental approach due to the conservative views of some who feel a more punitive
approach is required within the Act (Bell,2011).
Furthermore Bell(2011) goes on to state that even with the good intentions of the Act,
specifically in relation to encouraging family and community participation in assisting a
young offender to grow out of crime, it still falls short of the provisions from the UNCRC.
This is determined through the lack of segregation from adult prisoners whilst a child is held
in detention.
However there are countries where the welfare approach towards young offenders and
their families does follow international law. Examples of which are identified by Arthur
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(2010) as Scotland and the Scandinavian countries. Within these countries there focus is on
the welfare of the child whether as a young offender or not. Whereas in England and Wales
the welfare principle as determined in the Children Act 1989 provides that parents and
carers have responsibility in terms of their role and duties towards the child.
The court’s decision in HC specifically focused on the ratification by the UK of the UNCRC,
which determines the states duty towards the child and that a child is recognised as being
under the age of eighteen. The case of R v G [2003] UKHL 50 was cited, which stated that a
child accused of a crime must have their age taken into account for their own good and that
of society as instructed by the UNCRC. The purpose of this was to stress the vulnerability of
children and young people when confronted with the criminal justice system for the first
time.
The Home Secretary’s response to this was that the ratification of the UNCRC was down to
the states discretion as to how to implement the provision and that the procedure for
detention for seventeen year olds in the UK was acceptable. This meant that it was seen by
the state that they had provided for the international enforcement of international law. This
view being an administrative and political stance on the issue concerned as opposed to a
pragmatic one.
Judgment
Fortunately the judgement provided a balance to this view by bringing to the fore the
general consensus that a seventeen year old should be considered a young person by
organisations working with them. Such as HM Inspectorates of Prisons and Constabulary
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who in joint reports advocate for appropriate adults for young people in custody. The report
highlighted the inconsistency of the Code in that it was only at police stations that a
seventeen year old was treated like an adult.
Moreover Frances Cook of the Howard League states that ACPO and the Police Federation
also agree that seventeen year olds should be treated as children whilst being detained in
police stations. Special treatment under the under the Code includes the police monitoring
the young person more frequently than adults whilst in police custody (Howard League,
2011).
Further illustration of the above is the case of McGowan (Procurator Fiscal, Edinburgh) v B
[2011] UKSC 54, which raised the issue of the vulnerability of a child and the imbalance of
power by the criminal justice system. This was again to be refuted by the Home Secretary as
she felt that in this specific case regarding the revision of the Code there was not an
imbalance towards the young person’s rights but that a seventeen year old in police
detention would have their needs provided for as would an adult.
The imbalance of treating a seventeen year old as an adult was further emphasised in the
judgment by the need for the state to ensure access to justice for all as established in the
rule of law. This was determined by the case of R (on the application of) The Children's
Rights Alliance for England v The Secretary of State for Justice [2013] EWCA Civ 34. The
decision held in this case stressed the importance of ensuring access to justice for seventeen
year olds by having a parent or appropriate adult in attendance during their detention. This
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meant the young person could effectively make themselves heard, which is argued at that
developmental age may prove difficult for them, as the following establishes.
Neuroscientific evidence of a developmental approach
Scientific evidence now provides substantial data on the effects of normal development of a
young person’s mind. To advance this point are the neurological trials undertaken which
determine the possible adverse consequences of a young person caught up in the youth
justice system. Trials carried out by Blakemore have shown that adolescents have a greater
propensity for misunderstanding information given to them by adults in authority
(Blakemore, 2012).
Analysis of these findings and the process of brain development from the beginning to late
adolescence determine the need for special measures and assistance towards seventeen
year olds and young adults. This is further substantiated by neurological findings of the
adolescent brain still developing into the early twenties and the crime statistic figures
correlating with this scientific evidence. Specifically during the mid to late adolescence stage
of development, offending rates increase correlating with peak indications of neural
connectivity in the brain at the same time (Blakemore, 2012 and MOJ 2010/11).
An acknowledgement of these findings along with developments in the social sciences can
further the comprehension of the needs to addressed both in the shallow and deep end of
the youth justice system (Rutherford, 1992). Rutherford advocates an alternative approach
towards young offenders that deals with their needs at both ends of the youth justice
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system spectrum. At the beginning of his work he provides a quote from Mary Carpenter
such has a specific resonance with the case being discussed in this article. ‘We should not
sever the family ties of all these young persons, or place the hand of the policeman on so
many thousands of the rising generation’.
Although initially an advocate of incarceration, Mary Carpenter towards the end of her work
felt the criminal justice system needed to recognise the importance of the family towards
the young offender (Rutherford, 1992).In relation to the case under review is the historical
debate over the need to maintain where possible, the link between the young person and
their parents when they find themselves in contact with the youth justice system.
Arguments against legislative imbalance
The judgment in the case of HC advances this idea by emphasising the imbalance of the
provisions of the code in relation to article 8 ECHR. The issue of imbalance was deliberated
throughout the judgment as both the rights of the young person and the parent were seen
to be infringed. This in turn invoked the provision of article 8 of the ECHR and the
preservation of family life, which as the judgment highlights ‘the government seeks to
maintain and encourage’.
However the Home Secretary refuted this imbalance stating the following five points in her
argument:
- The first as stated above was that an adult was able to request an individual for support
when being detained and therefore welfare considerations were given to seventeen year
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olds who were treated as adults. However the courts response was that this did not address
the need to reconsider treating a seventeen year old as an adult whilst in detention.
- The second reason put forward was that the decision was left to the discretion of the
police under the code and whether they thought it appropriate and necessary to deny
informing an appropriate adult. The court again maintained that the relevant issue of a
seventeen year old being detained as an adult was not being addressed. Furthermore the
police response was that an officer would follow the legislative guidelines provided unless
the appearance of vulnerability was recognised as recommended by the code.
- The third reason offered was that a solicitor could suffice in instances where an
appropriate adult could not be informed. This being due to the Home Secretary stating that
there was not a need for every seventeen year old to have an appropriate adult. This was
contested by the notion that a solicitor could not constitute an appropriate adult as the
claimant stated he viewed them as an adult in authority and therefore their interests were
not met.
- The fourth reason given was that the time spent waiting for an appropriate adult could
result in the young person being detained for longer.
The court felt delay of an appropriate adult was inconsistent with the views of those
involved in the criminal justice system specifically in relation with this case where the
claimant was held for over 11½ hours without an appropriate adult(AA).
- The fifth reason being the cost element to the taxpayer should an appropriate adult other
than a parent having to attend whenever a seventeen year old is brought into custody. This
reason was based on an assumption that the majority of AA’s would not be parents and
currently there is not enough data to corroborate this assertion. There was also ambiguity
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over the estimate cost provided by the Home Secretary and therefore a reservation on her
forecast. This final reason also brought into question the imbalance of the welfare of the
child over increased costs within the youth justice system, specifically with consideration
towards International treaties.
Furthermore the Home Secretary’s argument against revision was that a line had to be
drawn in determining the age of a young person in detention and that of an adult, which
counteracted her claim for not amending the code as the line was drawn or ascertained in
all other legislation concerning young offenders. Therefore she put herself in a position of
conflict against her own argument for non amendment.
A further argument put forward was a constitutional point in that it was the will of
parliament to leave the Code unchanged as the Code formed guidelines of practice in
relation to an Act and therefore it was for Parliament to legislate otherwise. This was
counteracted by the court in that section 6(1) Human Rights Act 1998 states ‘It is unlawful
for a public authority to act in a way which is incompatible with a Convention right.’ This
seemed to be a consistent failing by the home Secretary in that she would dismiss the
significance of the ECHR provisions, making her case lack credibility on a political standpoint
as opposed to the welfare of the child. This incomprehension by the Home Secretary that
their own law making policies had already seen a demarcation applied in terms of classifying
a young person between an adult had been invoked into domestic legislation by Parliaments
own will.
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However the judgment ascertained that the Code was incoherent, specifically in relation to
international and domestic legislation. Although it was recognised by the court that the
Home Secretary’s stance was not an irrational one in light of the constitutional aspect.
Nonetheless as stated above the court found the Code to be unlawful and application for a
review applied. Before an amendment may be made consultations with the relevant bodies
concerned will be carried out and the amendment put in the form of a statutory instrument,
which will need to be subject to Parliamentary approval.
If the ruling is not complied with in the form of a revision of the code and seventeen year
olds continue to be treated as adults in police custody, there may be claims brought for
breach of their human rights under the Human Rights Act 1998 (NAAN,2013).
Legal implications of the judgment
The outcome of this judgment as to the procedures laid out for seventeen year olds in police
custody places emphasis on the needs of the older adolescent as being similar to a child’s.
ACPO have provided guidance for custody officers, whereby in light of the ruling, seventeen
year olds are to be treated as a ‘ juvenile’ in relation to the code as it stands. This ensures
the custody officers provide an appropriate adult should the young person require. The
guidance goes on to state that the offer of an appropriate adult to seventeen year olds
should be recorded in the interests of all concerned. Furthermore the parents of the young
person should be notified as long as it is in the young person’s interest. This provides for the
rights of the parents as well as the young person under Article 8 ECHR. (Just For Kids Law,
2013)
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Appropriate Adults
One of the reasons against revision of the Code given by the Home Secretary was the cost
implications in providing every seventeen year old with an appropriate adult. This was
estimated as 19.1million per year. The Home Secretary did admit the figure should be
treated with caution and was for ‘indicative purposes only’. The court queried this figure
and its purpose as statements from the National Appropriate Adult Network (NAAN)
disputed the figure on the grounds that they already had AA’s willing to deliver services to
seventeen year olds. The court was in doubt as to the last minute presentation of the policy
document which suggested the government may be putting costs before the welfare of the
child.
In a briefing following the ruling NAAN estimated the cost for delivering AA services would
cost approximately 1.5 million per year. This was based on figures that also highlight a need
for substantial data to be obtained in relation to the various bodies participating in the
provision of AA’s. However in an earlier report carried out by NAAN for the Home Office in
2010 it was illustrated that the majority of AA’s were used to assist young people as
opposed to adults and that they were either in house Youth Justice Board officers, voluntary
third sector or private bodies. Moreover in some areas they were being underused,
although there were a percentage of police regions asking for a 24 hour AA service as these
services were not always on offer. This illustrates the need for further research in this area
to establish the resources needed within police stations for defendants.
The report did recognise that there would be financial implications towards expanding AA’s
to meet the demands of seventeen year olds in police custody (NAAN, 2010). However in
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light of recent consequences of detention of seventeen year olds without their parents
present and the need to safeguard and promote the welfare of the child this implication is
clearly not a priority. Significantly the judgement made in the case of HC may provide some
relief for those concerned in drawing attention to the need to amend the Code in light of it
being unlawful.
Findings
The outcome of the case has brought to the fore issues that overlap each other in terms of
policy and legislation towards the rights of the young person and their parent’s rights and
responsibilities. This is highlighted in the different approaches each government has taken
when intervening in the youth justice system. However more significantly in relation to the
case above is the political stance on parental responsibility towards young offenders. The
perception that parents do not want the responsibility of the young person caught up in
trouble due to their risk taking behaviour is a reaction from the media, who exploit the deep
seated fear of young people some members of the public have.
The last decade has seen an attempt at diverting away from incarceration of young people
for cost saving purposes, which in itself has been incongruous. There is confusion between
the legislation in place and the policies being debated surrounding the duty of parents
towards their children when in contact with the youth justice system. As Rutherford
proposes there is a need to direct resources towards the deep end of the youth justice
system, such as incarcerative institutions, which in turn will assist with the policy of
decarceration.
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Conclusion
The article demonstrates the current irregularity in determining the responsibilities of the
parents towards young offenders. The legislation discussed above dictates that the parents
duty is of significance by enforcing sanctions against them should they be deemed to be
failing in that duty. However the legislative approach has been a reactive intervention,
providing legislation that is confused with other domestic legislation. If provisions within
international law toward the young offender were adhered to there would not be the
anomaly recognised from the case above.
Therefore where the state determines the legislation for parental duty through its own
collective responsibility it also can have a negative intervention approach towards the family
and increase the chances of moving the young offender from the shallow end of the youth
justice system to the deeper end. This could be avoided by ensuring current legislation is in
line with international law and its recognition of the welfare of the child as opposed to
political gains made in terms of reactionary intervention towards their risk taking behaviour.
The article also establishes a need for further youth led research within this area, which
could assist in identifying the flaws in legislative provisions for young people and their
families’ caught up in the youth justice system. This data can only further inform decision
makers in terms of policy reform within the youth justice system.
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