Ancillary orders
The different types of civil orders given to children in or on the verges of the justice system. It includes the role of the youth justice service and what happens if they are breached as well as information on civil injunctions and other ancillary orders.
As well as giving a criminal sentence to a child, in some circumstances the court may impose additional orders. These are known as ancillary orders. These can either be aimed at preventing an escalation in anti-social behaviour which may lead to offending; or be added to a sentence. It is the court’s decision as to whether an ancillary order is appropriate, based on an assessment of the offence and the individual child.
Whilst civil orders are intended to be preventative rather than punitive, breach of a civil order is a criminal offence and it is therefore important to apply them appropriately and with the necessary support for the child and their family. Some (but not all) ancillary orders require consultation with the youth justice service (YJS), others can be imposed without it. However, it is good practice for the YJS to be involved in establishing:
- whether any other alternatives could be considered
- if alternatives have been used how the child has responded to them
- what support is available to them and their family and whether the ancillary order is appropriately targeting the child’s needs and likely to be effective in achieving change.
YJSs may hold information which will be useful for informing decision making and maximising the engagement with the child.
Informal measures such as an Acceptable Behaviour Contract should be considered and utilised to support the child and provide them with a supported opportunity for positive behaviour before moving to civil orders. Where a child is also subject to a criminal order, consideration should always be given to what interventions and support can be provided through the existing order, to improve engagement and positive outcomes for the child, rather than adding an ancillary order. This avoids confusion for all involved which can contribute to challenges for the YJS in engaging the child.
It is good practice for the YJS to have protocols in place with the local authority anti-social behaviour team, the Crown Prosecution Service and the police, so that when an ancillary order is under consideration, the YJS will be alerted and there is an established process for considering what is the most appropriate course of action and to assess the child’s needs.
Evidence suggests that the use of civil orders, and breaches of these, can contribute to disproportionate outcomes for some groups of children in the justice system or escalate them into the formal justice system as a result of breach. Diversity should be a consideration in all consultations on civil orders and care should be taken to prevent disproportionate use or criminalisation of over-represented groups. This includes (but is not restricted to):
- Black and Mixed ethnicity children
- children from Gypsy, Roma and Traveller communities
- children who are or have been looked after by the local authority
Care should also be taken to recognise the specific needs of children with protected characteristics including learning needs and invisible disabilities. Civil orders should be not used to address vulnerabilities or safeguarding needs, these should be addressed through other routes such as children’s social care.
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The following ancillary orders can be given to a child by the court and this guidance sets out each with a brief description of the key requirements and the minimum and maximum duration of each where appropriate:
- driving penalty points and disqualification
- Community Protection Notice
- Criminal Behaviour Order
- civil injunctions: Anti Social Behaviour Injunction and Gang Injunction
- Sexual Harm Prevention Order
- Stalking Order
- Knife Crime Prevention Order
Requirements should directly respond to the behaviour the order seeks to address, and not repeat or duplicate anything which can be delivered through a criminal order to which the child is also subject. Where the requirements of the criminal order can be used to achieve the same outcomes, it is not necessary or proportionate to repeat them through a civil process and can cause confusion.
Prohibitive requirements might include restricting the child from entering a specific geographical area or associating with other named children. You should recommend against any proposed prohibition which:
- restricts the child’s ability to engage in education, work or positive activities
- restricts the child in engaging with statutory court orders
- increases stigma or supports a criminal identity
- is in itself a criminal offence, such as ‘carrying a knife’
- is so wide that it restricts disproportionately – such as prohibiting the child from carrying a mobile phone
- impacts on the child having normal social interaction – they should not usually be prohibited from associating with more than two named individuals
- is disproportionate or overly restrictive e.g. has too many requirements. For a child, a maximum of three requirements is suggested to promote engagement
- is vague or unclear to the child, taking into account the child’s age, maturity and learning needs
Positive requirements might include requiring the child to attend an educational programme or substance misuse support; or engage in positive social activities. The focus should be on developing the child’s individual strengths and capacities, and a positive self-identity. Any positive requirements proposed should have a direct relationship to the change the order seeks to achieve. In discussing proposals for positive requirements, you should be aware that:
- discussing with the child and their family what would be meaningful and helpful to them is more likely to support the service in engaging the child
- it is a breach of the order if the child, without reasonable excuse, fails to do what they are required to; so positive activities may be better delivered on a non-mandatory basis
- maximising opportunities for voluntary engagement may be more effective than requirements which contain compulsory attendance
- therapeutic work which helps to lessen the likelihood of future harmful behaviours such as counselling is actively undermined by compulsory status
- children who are forced to attend sporting or other positive activities are likely to engage less than those who attend by choice
- it is not appropriate for civil orders to be used to meet a child’s safeguarding needs, or protect them from abuse or exploitation
Before a civil order is considered, you should use informal measures to attempt to support the child. Good partnership arrangements with the police and Community Safety will give the opportunity to explore voluntary intervention first. This could include the use of an Acceptable Behaviour Contract (ABC).
An ABC is an agreement made with the child by the partner agencies concerned, setting out what specific actions will be undertaken, and what support can be given to the child to achieve this. This may include voluntary engagement with the youth justice service, Early Help or other support services.
ABCs are voluntary, and there are no enforcement measures possible apart from moving to formal court action. They should be drawn up jointly with the child and can be effective in supporting the child to understand the impact of their behaviour and what change is needed and to access guidance and support.
For some driving offences, the court may give penalty points. This applies to children even if they are below the legal driving age and/or do not have a driving licence. Sometimes there is also a period of disqualification. Where the child is below the legal age for driving, an out-of-court disposal with driving education is likely to be more meaningful and effective than these measures.
In some cases, the court can decide whether or not to disqualify the child from driving. You should consider the impact on the child on employment and training opportunities, aspiration and interests.
A Community Protection Notice (CPN) can be given to a child aged 16 or over, with the aim of reducing anti-social behaviour (ASB). Unlike other ancillary orders, there is no maximum length for a CPN (though the timescale must be proportionate), and it is not necessary for a criminal sentence to have been given. CPNs are usually given by council ASB officers; but may also be given by police officers or registered social landlords. No court process is necessary for a CPN to be given.
A CPN may be given if the child’s behaviour is seen to be:
- having a negative effect on local people
- persistent
- unreasonable
Before giving a CPN, the child must be given a written warning explaining the specific behaviour which should change, a reasonable timescale for demonstrating change, and that a CPN is being considered. At this stage every effort should be made to address barriers – for example a child who has no school place or is subject to neglect or abuse at home will need support in these areas as a priority.
A CPN will include requirements to do or not do certain things. These should be directly related to the behaviour which the notice is intended to change and should be less onerous than those expected from a court issued order. There is limited statutory guidance on the detail of requirements, and there is no expectation of consultation with the youth justice service prior to giving the Notice – though it would be good practice to agree local consultation arrangements with local authority ASB services and the police. See what to consider regarding prohibitions or positive requirements on an ancillary (civil) order.
If consulted, you should suggest that:
- no more than a maximum of three requirements should be given
- the Notice should be given for a period of six months maximum
- requirements should be of a low level commensurate with an out-of-court process
Breaching a CPN is a criminal offence and can lead to a fine.
A Criminal Behaviour Order (CBO) can be given to a child aged 10 or over on conviction for a criminal offence, where the court considers it is necessary to prevent behaviour which may cause harassment, alarm or distress, proved to the criminal standard (‘beyond reasonable doubt’).
The Crown Prosecution Service (CPS) must consult the local youth justice service to get your views before applying for a CBO. Your service should have a local protocol with the CPS and police for how this consultation process should happen, including:
- involving a manager of operations level at minimum in the consultation process, as well as the case manager for the child
- consideration as to whether an informal measure such as an Acceptable Behaviour Contract can be utilised prior to civil action
- agreement on a maximum number of requirements to be given to a child on a CBO (it is suggested that this should be no more than three to support positive engagement)
- agreement on a maximum timescale of one year for the CBO, with review and the option of early revocation for good progress as well as extension if needed
Reporting restrictions do not apply to making a CBO. Legally, decisions to publicise CBOs for children must be necessary and proportionate; and have considered the welfare of the child. Shaming children is shown to increase a criminal self-identity and cause additional societal stigma; and is to be avoided.
If the child does not keep to the terms of the CBO, this is a criminal offence and they can be arrested. The CPS must decide whether it is in the public interest to prosecute, balancing the seriousness of the offence with the welfare of the child. A breach can lead to six months’ imprisonment, a fine, or both.
An Anti-Social Behaviour Injunction (ASBI) can be given to a child aged 10 or over to prevent anti-social behaviour causing harassment, alarm or distress, proved on a balance of probabilities. It is usually applied for by the local authority or police, and the youth justice service must be consulted. Your service should have a local protocol with the Crown Prosecution Service and police for how this consultation process should happen, including:
- involving a manager of operations level at minimum in the consultation process, as well as the case manager for the child
- consideration as to whether an informal measure such as an Acceptable Behaviour Contract has been utilised prior to civil action; and factors underlying the behaviour been addressed and resolved
- agreement on a maximum number of requirements to be given to a child on an ASBI (it is suggested that this should be no more than three to support engagement)
- agreement on a timescale of between three and six months for the ASBI, with review and the option of early revocation for good progress as well as extension if needed
The maximum length for an ASBI is 12 months. In order to maximise the likelihood of engagement for the child it is suggested that the starting point should be a much shorter period, with the option to extend if necessary.
ASBIs can include prohibitive and restrictive requirements; see what to consider regarding prohibitions or positive requirements on an ancillary (civil) order.
Reporting restrictions do not apply to making an ASBI. Decisions to publicise orders about children should be necessary and proportionate; and have at their centre the welfare of the child. Shaming children is shown to increase a criminal self-identity and cause additional societal stigma; and is to be avoided.
Breach of ASBI is not a criminal offence, but it does carry a power of arrest and the court can make a supervision order or impose a custodial sentence of up to three months if the child does not engage.
A Gang Injunction can be given to a child aged 14 or over if the court considers, on the balance of probabilities, that this is necessary to prevent gang-related violence or drug dealing activity. The youth justice service must be consulted if the application is against someone under the age of 18 any other body or individual the applicant thinks appropriate must be informed. Your service should have a local protocol with the Crown Prosecution Service and police for how this consultation process should happen, including:
- involving a manager of operations level at minimum in the consultation process, as well as the case manager for the child
- consideration as to whether an informal measure such as an Acceptable Behaviour Contract has been utilised prior to civil action
- whether the child is being exploited and safeguarding measures have been taken to protect them
- agreement on a maximum number of requirements to be given to a child on a Gang Injunction (it is suggested that this should be no more than three to support engagement)
- agreement on a timescale, it is suggested that this should be six months for the Gang Injunction, with review and the option of early revocation for good progress as well as extension if needed
Gang Injunctions can include prohibitive and restrictive requirements; see what to consider regarding prohibitions or positive requirements on an ancillary (civil) order.
Reporting restrictions for youth courts apply to making a Gang Injunction, so there can be no publicising of these orders.
Breach of a Gang Injunction is not a criminal offence, but the court can make a supervision order or impose a custodial sentence of up to three months if the child does not engage.
For under 18s, a supervision order is usually given or, as a very last resort, and only for 14 to 17-year-olds, a civil detention order of up to three months.
A court can make a Sexual Harm Prevention Order (SHPO) if a child has been sentenced or cautioned for an offence listed in Schedules 3 and 5 of the Sexual Offences Act 2003 and it considers it necessary to protect the public from sexual harm. SHPOs are imposed for a minimum of five years and must be necessary and proportionate so it is unusual for one to be used in relation to a child. The lower age limit is 10, which is the age of criminal responsibility, but where the defendant is under the age of 18, an application for an order should only be considered under extremely exceptional circumstances of very high risk of harm. SHPOs can only have prohibitive requirements; positive requirements may not currently be imposed.
A Sexual Risk Order (SRO) is a civil order which can be sought by the police against an individual who has not been convicted or cautioned for a sexual offence but who is nevertheless thought to pose a risk of harm. An SRO sets prohibitions which must be necessary to protect the public, children or vulnerable adults from harm, and should only be used in very exceptional circumstances for a child. The minimum duration for a full order is two years.
SHPOs and SROs require the child to notify the police within three days of any changes of name or address. The court may also direct a parent or carer to do this on the child’s behalf. When applying for a SHPO or an SRO in relation to a child, the following principles should apply:
- early consultation and participation of the youth justice service in the application process
- the welfare of the child is a paramount consideration and must be balanced with the prevention of future harmful behaviour
- all other orders already in existence are taken into account to ensure that there are no conflicts, and that the child is able to comply
- under 18s made subject to civil injunctions in relation to harmful sexual behaviour should be offered appropriate interventions to support them
- the nature and extent of support should be based on a structured assessment that takes into account the needs of the child and the risk of harm
There is a range of measures for breach of SHPO, from a fine to a five-year custodial sentence. There is no specific guidance on breaches by children, the welfare of the child would need to be balanced with prevention of future harmful behaviours.
Stalking Protection Orders can be issued by a youth court to children from the age of 10 if the court is satisfied that the:
- child has carried out acts associated with stalking
- child poses a risk associated with stalking to another person and
- proposed order is necessary to protect another person from such a risk
A Stalking Protection Order is for a minimum of two years. It can contain both prohibitions (things the child is not able to do) and requirements (things the child must do); see what to consider regarding prohibitions or positive requirements on an ancillary (civil) order.
In the very rare occasions when the police are considering applying for a Stalking Protection Order for a child under 18 years old, there is a requirement for consultation with the local youth justice service. The consultation should:
- involve a manager of operations level at minimum in the consultation process, as well as the case manager for the child
- agree a maximum number of requirements to be given to a child on a Stalking Protection Order (it is suggested that this should be no more than three to support engagement)
- agree on a timescale of two years, with review and the option of early revocation for good progress as well as extension if needed
Failure to comply with either prohibitions or requirements is a criminal offence and the child can receive a fine, or custodial sentence of up to five years.
A Knife Crime Prevention Order (KCPO) can be given to a child aged 12 years or more if the court considers on the balance of probabilities that the child has carried a knife (or other bladed article) at least two times; and that the order is necessary to prevent further incidences and protect the public.
The youth justice service must be consulted when a KCPO is proposed. Your service should have a local protocol with the CPS and police for how this consultation process should happen, including:
- involving a manager of operations level at minimum in the consultation process, as well as the case manager for the child
- consideration as to whether an informal measure such as an Acceptable Behaviour Contract has been utilised prior to civil action; and whether any other preventative measures such as those provided by a Violence Reduction Unit have been used
- agreement on a maximum number of requirements to be given to a child on a KCPO (it is suggested that this should be no more than three to support engagement), these should be set with the aim of developing a positive self-identity for the child
- agreement on a timescale, it is suggested that this is six months for the KCPO, with review and the option of early revocation for good progress as well as extension if needed
The maximum length for a KCPO is two years. In order to maximise the likelihood of engagement for the child the starting point should be six months; with the option to extend if necessary.
KCPOs can include prohibitive and restrictive requirements; see what to consider regarding prohibitions or positive requirements on an ancillary (civil) order.
Breach of a KCPO is a criminal offence, and the full range of community sentences is available for children who are in breach.