l - [2025] EWHC 2230 (Fam)

The purpose of sentencing in criminal cases and the paramountcy test

Section 57(2) of the Sentencing Act 2020 provides that the purpose of sentencing adult offenders is (a) the punishment of offenders, (b) the reduction of crime (including its reduction by deterrence), (c) the reform and rehabilitation of offenders, (d) the protection of the public, and (e) the making of reparation by offenders to persons affected by their offences. Instead, for children and young persons section 58 of that Act provides:

“Nothing in this Code affects the duties of the court—

to have regard to the principal aim of the youth justice system (which is to prevent offending (or re-offending) by persons aged under 18: see section 37 of the Crime and Disorder Act 1998);

under section 44 of the Children and Young Persons Act 1933 (to have regard to welfare and in certain cases to take steps in relation to surroundings and provision of education etc).”

The Sentencing Guideline Council’s guideline Sentencing Children and Young People (in force from 1^st June 2017) provides:

In determining the sentence, the key elements to consider are:

the principal aim of the youth justice system (to prevent re-offending by children and young people);

the welfare of the child or young person;

the age of the child or young person (chronological, developmental and emotional);

the seriousness of the offence;

the likelihood of further offences being committed; and

the extent of harm likely to result from those further offences.

The seriousness of the offence is the starting point for determining the appropriate sentence; the sentence imposed and any restriction on liberty must be commensurate with the seriousness of the offence.

The approach to sentencing children and young people should always be individualistic and the court should always have in mind the principal aims of the youth justice system.

In order to determine the seriousness of the offence the court should assess the culpability of the child or young person and the harm that was caused, intended to be caused or could foreseeably have been caused.”

The test which the High Court applies when exercising the inherent jurisdiction is that in section 1(1) of the Children Act 1989 where “the child’s welfare shall be the court’s paramount consideration.” There is a substantial overlap between this test and the sentencing provisions set out above, but they are not identical. For example, this Court will obviously seek to reduce the risk of the child reoffending, but this will merely be one consideration under the paramountcy test, whereas for the Youth Offenders Team this will be a predominant factor.

I was not addressed on how these differences might affect this Court’s approach to making a DOLs order, or indeed whether the statutory provisions for juvenile offenders might completely oust the High Court’s power to exercise its inherent jurisdiction. The ouster of jurisdiction might be on the basis that the criminal sentencing provisions comprise an exhaustive code for dealing with young offenders or that the Youth Offending Team (and the Secretary of State on granting or revoking an offender’s licence) have the ultimate decision-making power. On this latter view, the only remedy of the young person or his guardian would be judicial review to the King’s Bench Division rather than resort to the Family Division for the exercise of the Court’s parens patriae powers over minors.

In order to determine the current application it is not, however, necessary for me to decide these points of law. Nor (unless there were no alternative) would it be appropriate to do so when this matter was argued at an appointment in the ordinary one-hour DOLs list.