Protecting Rights at the Margins of Youth Justice in England and Wales: Intensive Fostering, Custody and Leaving Custody
| Author | Kathryn Hollingsworth |
| DOI | 10.1177/1473225408096462 |
| Published date | 01 December 2008 |
| Date | 01 December 2008 |
| Subject Matter | Articles |
ARTICLE
Copyright © 2008 The National Association for Youth Justice
Published by SAGE Publications
(Los Angeles, London, New Delhi, Singapore and Washington DC)
www.sagepublications.com
ISSN 1473–2254, Vol 8(3): 229–244
DOI: 10.1177/1473225408096462
Protecting Rights at the Margins of Youth Justice in
England and Wales: Intensive Fostering, Custody
and Leaving Custody
Kathryn Hollingsworth
Correspondence: Dr Kathryn Hollingsworth, School of Law, King’s College London,
Strand, London, WC2R 2LS, UK. Email: Kathryn.hollingsworth@kcl.ac.uk
Abstract
This article attempts to set out a framework for understanding children’s rights in the youth
justice system. It distinguishes between the child’s status and rights as offender, and the child’s
status and rights as child. It argues that at certain stages – namely, the margins of youth justice
(the pre- and post-crime contexts) - the child’s primary status is child, and hence his/her rights
as a child should have primacy. It applies the framework set out in part one to the post-crime
margin, specifi cally to the use of intensive fostering as part of a community sentence, to children
in custody, and to children leaving custody. It considers some of the children’s rights issues
which arise here.
Keywords: children’s rights, Children Act 1989, custody, intensive fostering
Introduction
Adequate rights protection for children in the youth justice system is crucial not only to
protect the due process and liberty rights that are due to all offenders, but also to mitigate the
vulnerabilities and limited competences that are specifi c to child offenders. Articles 37 and 40 of
the United Nations Convention on the Rights of the Child (the CRC), in conjunction with the
less context-specifi c rights such as Articles 3 (the best interests provision) and 12 (the right to be
heard), aim to achieve both of these things. Measuring the extent to which a state’s youth justice
system complies with the CRC is thus a highly valuable exercise.
Nonetheless, the CRC has not been incorporated into the domestic law of England and
Wales and although it can provide an important resource when lobbying government for
change, or as an interpretative tool for the judiciary, it does not create enforceable rights for
children. Instead, children must rely on the domestic law, and the willingness of the judiciary to
identify and protect their rights under that law.
In England and Wales, the last six years have seen an increase in the number of rights-based
claims brought by children in the area of youth justice (Fortin, 2006). In part, this increase
is attributable to the domestic incorporation of the European Convention on Human Rights
230 Youth Justice 8(3)
(ECHR). Additionally, it may also be due to the ‘adulteration’ of children (Fionda, 1998)
resulting from some aspects of the ‘new youth justice’ (Goldson, 2000), and the failure of the
legislative and policy framework (at times) to take adequate account of the vulnerabilities and
lack of competence which stem from the child’s immaturity. This leaves children with little
option but to turn to the courts. But despite increased rights-awareness, there is still a lack of
clarity as to what we mean by children’s rights in the fi eld of youth justice, and how we should
protect those rights. The issue often goes to the extent to which we should treat children the
same as, or differently from, adults (Eekelaar, 1986; Campbell, 1992; Freeman, 1983).
This is not a new problem in youth justice; any cursory glance of recent history demonstrates
pendulum swings between an emphasis on the child and a focus on the child offender. On the
whole, the division between a ‘welfare’ (usually a more child-based) approach and a justice
(offender) approach has been played out in terms of the institutional and procedural arrange-
ments within the youth justice system. The ‘new youth justice’ moves away from this dichotomy
and instead other values and infl uences have emerged (Muncie, 2004; Gelsthorpe, 2002). But
in relation to the child’s enforceable rights, the dichotomy – and the problems with it - remains.
This article will provide a framework for understanding the (largely) domestic rights of
children at the margins of youth justice in England and Wales. It will be argued on the basis of
the conceptual framework set out in the fi rst part of this article, that, unlike other parts of the
youth justice system, the child’s primary status (for most purposes) at the ‘margins’ of youth
justice is child. This is important because it affects the type of rights to which the child ought to
be entitled. The second part of the article will look specifi cally at the post-crime ‘margin’, and in
particular intensive fostering and the child in and leaving custody, to assess compliance against
the framework set out in this article, in the ECHR, and where appropriate, in the CRC. It is
very likely that applying this framework would result in outcomes similar to those which would
be achieved if one sought to make the youth justice system in England and Wales compliant
with the CRC. In this way, the approach in this article is very much in line with that taken by
other commentators in this issue. Nonetheless, applying a conceptual framework which can be
used regardless of the legal status of the CRC within the domestic law, hopefully provides the
additional benefi ts of being both theoretically satisfactory as well as domestically applicable.
The Conceptual Framework
The child’s dual status
As noted above, one of the diffi culties in youth justice (and elsewhere) is whether and how the
rights of children should differ from the rights of adults. On the one hand, children are persons
and so should be entitled to all those rights which adults have (which we can call the child’s
‘rights as person’). For example, the rights protected by the ECHR apply to all regardless (by
and large) of age (Kilkelly, 1999). On the other hand, children as a group are developmentally
and physically immature compared with adults, resulting in greater vulnerability and lower levels
of competence. Adequately protecting the child’s interests might therefore demand differential
treatment in order to take into account the special characteristics and needs which thus arise.
For example, we might argue that children lack the competence to be able to choose when and
how to exercise their rights as person and that someone should do so on their behalf (usually
determined on the basis of the child’s ‘best interests’). Or, we might want to mitigate the child’s
vulnerability and lack of competence by conferring on him/her rights, which are additional to
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