M (a child) , R (on the application of) v Sheffield Magistrates' Court

A local authority may apply for an anti-social behaviour order against a child in its care. Its concurrent duties to protect the public and safeguard the child’s welfare create a conflict of interest, but do not remove its statutory power to apply.

Before deciding to apply, the authority must obtain and properly consider the wishes and feelings of the child and relevant persons under Children Act 1989, section 22. Care proceedings and ASBO proceedings must be organised so that the child’s interests and access to relevant social-services evidence are protected. The social worker responsible for the child should ordinarily not participate in the decision to apply. An interim order should not ordinarily be made without notice or without social-services representation where the child is in care.

“M”, a child subject to a care order and living with his grandmother, faced an application by Sheffield City Council for an anti-social behaviour order. The Council was both responsible for promoting his welfare under the Children Act 1989 and a relevant authority empowered to apply under the Crime and Disorder Act 1998.

The application followed allegations of serious offending and anti-social behaviour. During the decision-making and court processes, social-services information was inadequately considered, the child could not obtain effective assistance from relevant local-authority personnel, and an interim order was made without adequate notice or social-services attendance. The central issues were whether the Council had power to apply and what safeguards were required to manage the conflict of interest.

1. Power to apply. The conflict between the Council’s public-protection function under section 1 of the Crime and Disorder Act 1998 and its child-welfare duties under section 22 of the Children Act 1989 did not disempower the Council. Section 22(6) recognises that a local authority may sometimes exercise its powers in a way inconsistent with its welfare duties to protect the public from serious injury. Conflicting statutory duties should, where possible, be reconciled through appropriate procedures.
2. Consultation and decision-making. A decision to apply for an ASBO is a decision for the purposes of section 22(4). Before making it, the authority must ascertain, so far as reasonably practicable, the wishes and feelings of the child, persons with parental responsibility and other relevant persons, and give them due consideration. A report prepared by social services must be independent and full, and must be presented as a report on behalf of the child rather than merely as an ASBO-panel report.
3. The social worker responsible for the child should ordinarily not participate in the decision whether to apply. This protects both actual independence and the child’s perception of independence. Social-services staff should remain available to assist the child and give evidence at court, and the authority’s ASBO solicitor should not ordinarily attend meetings between the child’s solicitor and social-services representatives.
4. Interim order. The interim ASBO should not have been granted without notice in the circumstances. Notice at the hearing was insufficient, no social-services representative was present, and the order did not adequately take account of the existing ISSP and curfew. Prohibitions should address anti-social behaviour and should not improperly operate as mandatory requirements.
5. No relief was required because the interim order had expired. Further progress in the ASBO proceedings was not to occur until the identified procedural safeguards had been completed. Permission was granted for the judgment to be publicised.