Abstract
More Than One in Four Children Subject to a Youth Justice Court Disposal in England and Wales Are in the Care of the Local Authority
In England and Wales, youth offending teams (YOTs), the statutory multi-agency partnerships with responsibility for providing services to children subject to youth justice interventions, are inspected by Her Majesty’s Inspectorate of Probation. The Inspectorate’s Annual Report, published in November 2020, summarises the outcome of those inspections and indicates that children in care are substantially over-represented among those subject to formal youth justice disposals.
On 31 March 2019, 78,150 children were looked after by the local authority in England (Wales has devolved responsibility for children’s services and Welsh children are accordingly not included in the data), a rate of 65 per 10,000 children in the population, or 0.65 per cent. By contrast, according to the Probation inspectorate, in the 24,000 cases examined in 2018/2019 of children given a caution or subject to a court order, an estimated 4500 (approaching 19 per cent) were children in care. Although figures are not directly comparable, it would appear too that over-representation rises in line with the level of youth justice intervention. Thus, 26 per cent of cases inspected, over the past 2 years, of children subject to a court disposal (that is omitting those given a pre-court disposal), were ‘in the care of the local authority at some point during their sentence’. Surveys of children detained in young offender institutions (YOIs) and secure training centres (STCs) during 2018/2019 (children in secure children’s homes (SCHs), the third type of custodial establishment are not included in the data) found that more than half (52 per cent) reported having been in care at some point in their lives.
The Probation Inspectorate also found that the quality of provision to children in care by YOTs was, on average, of a lower standard than that given to their non-care counterparts. Moreover, as shown in Table 1, where looked-after children were placed outside of their local authority area, the quality of services was further diminished. For that group of cases, planning, delivery and review of interventions were all assessed as requiring improvement on aggregate.
Aggregate inspection ratings, 2018/2019 and 2019/2020, by care status and area of placement (1253 court cases across 42 youth offending teams).
A report, published in November 2020, by the Children’s Commissioner for England highlighted the extent of ‘out of area’ placements, indicating that more than 30,000 children in care are placed outside their own local authority at any one time. This figure includes 2000 children who are placed more than 100 miles from home. Moreover, out-of-authority placements are growing more rapidly than the overall increase in care: between 2014 and 2018, there was an 18 per cent rise in the number of children placed more than 50 miles from their home local authority, nearly twice the rate of increase for the total number of children in care over the same period. Children in this particularly vulnerable group are, for the most part, accommodated in the growing number of private-sector residential homes, posing additional challenges to high quality provision of services as a consequence of the ‘fragmented, uncoordinated and irrational market that ultimately does not meet the needs of children’.
In this context, co-ordinated planning for ‘dual status’ children – those who are both in care and subject to youth justice intervention – is particularly important. It is accordingly disappointing that Her Majesty’s Inspectorate of Probation found that part of the reason for differentials in the quality of provision for looked-after children and those not in care was that working relationships between YOTs and children’s services were often inconsistent or ineffective, despite both services being located within the local authority.
Respective roles and responsibilities, where a child was in care, were not always sufficiently clear; the vulnerability of children who had offended was not always recognised; and youth justice staff did not, as a matter of routine, attend strategy meetings and child care reviews. As a consequence, joint planning was often poor and lacking in consistency leading to a situation where the quality of service to children in care was, on the whole, unfavourable by comparison with that for children not in care and ‘was particularly weak for children placed in accommodation outside their local area’.
Where children in care were placed in a residential home outside of the local authority area, it was common for the ‘home’ YOT to ask the ‘host’ YOT covering the area where the child was residing, to undertake the programme of supervision on their behalf. Such an arrangement was understandable prior to the onset of the Covid-19 pandemic, given the difficulties associated with maintaining face-to-face contact at a distance. However, the Inspectorate found that such practice had persisted beyond the start of the pandemic, and the introduction of lockdown, when youth justice contacts were increasingly undertaken remotely, via telephone or other forms of technology. The rationale for asking for assistance from the host authority was thus less clear. In such circumstances, YOTs were missing an opportunity to provide elements of continuity for this particularly vulnerable group of looked-after children placed out of their own area. Future planning, the report suggests, should draw on the lessons learned from the changes to service delivery necessitated by the impact of coronavirus.
The report also highlights the changing role of YOTs as a consequence of a policy shift towards diverting children from prosecution for less serious offending. Where this results in a formal caution, the police are required to make a referral to the YOT but informal responses, in the form of ‘community resolutions’ that are not subject to a statutory framework, have increasingly tended to take the place of formal out of court disposals. The Inspectorate notes that is a ‘wide variation in the policies and processes’ that govern such outcomes and determine what form of services children are offered, which have developed piecemeal amid ‘a vacuum of national guidance and evaluation’. This lack of consistency had led to something of a ‘post code lottery’: for instance, in some areas, there was no limit to the number of community resolutions that could be given to a single child; in others, there was a strict limit of one such disposal for each individual, at any age from 10 to 18 years:
Annual report: inspection of youth offending services, published by Her Majesty’s Inspectorate of Probation, is available at: https://www.justiceinspectorates.gov.uk/hmiprobation/wp-content/uploads/sites/5/2019/10/Youth-annual-report-inspection-of-youth-offending-services-2018-2019.pdf Figures for children in care, as a proportion of the child population, are given in Children looked after in England including adoption: 2018 to 2019, published by the Department for Education and available at: https://www.gov.uk/government/statistics/children-looked-after-in-england-including-adoption-2018-to-2019 The proportion of children in custodial institutions who report having been in care is given in Children in Custody 2018–19, published by Her Majesty’s Inspectorate of Prisons and available at: https://www.justiceinspectorates.gov.uk/hmiprisons/inspections/children-in-custody-2018-19/ Figures for the rise in out-of-authority placements are given in The children who no-one knows what to do with and Private provision in children’s social care, both published by the Children’s Commissioner for England, and available at: https://www.childrenscommissioner.gov.uk/report/the-children-who-no-one-knows-what-to-do-with/ and https://www.childrenscommissioner.gov.uk/wp-content/uploads/2020/11/cco-private-provision-in-childrens-social-care.pdf
Thematic Analysis of Youth Justice Reviews Conducted Across Australia Concludes That Reform Is Required if Detention of Children Is to Be ‘A Last Resort Option’
Responsibility for the administration of youth justice in Australia rests with states and territories. In recent years, extensive reviews of youth justice have been undertaken by nearly all of those authorities, most commonly in response to concerning high-profile incidents in youth detention centres. A report published by the Australian Institute of Criminology, in October 2020, provides a thematic analysis of these, and other relevant reviews, conducted across five states and the Northern Territory, identifying common issues and areas of disputation.
The context for the analysis is that detected youth offending across Australia, in common with many other jurisdictions, has declined markedly. In the decade from 2008/2009, the rate of children, aged 10 to 18 years, proceeded against by the police, declined from 3187 per 100,000 in the general population to 2045 per 100,000. While this decline appears to be less marked than the progress made in other jurisdictions, the base rate of criminalisation of children a decade ago was lower in Australia than in its overseas counterparts. The reduction in children coming to police attention has inevitably been reflected in a fall in the rate of children subject to youth justice supervision, which decreased by 22 per cent between 2008/2009 and 2017/2018.
There was a consensus across the reviews analysed that the smaller number of children who continue to enter the youth justice system are a vulnerable group, typically manifesting a range of complex needs. The phenomenon of ‘cross over kids’, who transition from child protection systems to criminal justice intervention, emerged as being particularly significant. For instance, one analysis of more than 58,000 case records, across seven Australian jurisdictions over a 4-year period, found that children who had contact with child protection services were nine times more likely than the general population to be under youth justice supervision; conversely, half of the children entering the youth justice system had previously been in receipt of child protection services.
A further issue, that featured as a consistent theme across all the major reviews examined, was the considerable over-representation of indigenous children among those entering the youth justice system. In 2017–2018, indigenous children accounted for around 1 in 20 of the general 10–17 population but constituted almost half of those subject to youth justice supervision; the former group were also 23 times more likely to be incarcerated than their non-indigenous counterparts. The Australian Child Rights Taskforce has characterised such disparities as ‘a national crisis’. The persistence of this issue over a considerable period highlights the complexity of the problem rooted in ‘chronic’ structural and intergenerational disadvantage.
The analysis also confirms a growing recognition that child detention facilities across Australia are frequently ‘not fit for accommodating young people, let alone rehabilitating them’. Many of the reviews considered in the report highlighted the negative impact of the custodial experience which was frequently exacerbated by an excessive use of ‘separation, segregation and confinement to manage young people’. Such treatment is inevitably associated with adverse implications for children’s long-term psychological and physical health and for their social and educational development.
In this context, many of the reviews analysed have reinforced the importance of ensuring that detention should be used only as a last resort, in accordance with the provisions of the United Nations Convention on the Rights of the Child, in order to minimise the damaging, and criminogenic, consequences of incarceration. The analysis identified a range of key recommendations which have been proposed to ensure that detention is only used where there is no alternative. Such proposals included raising the minimal age of criminal responsibility which, at 10 years of age in Australia, is out of line with global norms. Despite the fact that the principle of doli incapax, a rebuttable presumption that children aged 10–14 years are not sufficiently mature to be considered criminally culpable, applies in all Australian jurisdictions, 7 per cent of all children under youth justice supervision at any one time are below the age of 14, indicating that the principle has not precluded prosecution in many cases. An increased use of diversionary mechanisms, in the form of police cautioning or referral to welfare services, was also considered to have the potential to reduce the number of children at risk of detention. The use of diversion is inconsistent between different areas and lacks any systemic oversight and as a consequence has been underused in some localities. This ‘ad hoc’ approach to diversion represents ‘a missed opportunity to intervene and limit future contact with the youth justice system’.
Finally, there was a consensus that achieving a contraction in the detained population would require addressing the increasing use of custodial remand which, in some jurisdictions, had risen to account for around half of children in custody at any one time. A lack of stable accommodation, particularly for Aboriginal children and those with complex needs, was identified as one of the factors identified as preventing children from being granted bail, indicating a need for assistance with housing in such cases. Children were also frequently remanded to custody as a consequence of breaching conditions of bail, suggesting that the provision of bail support programmes, and measures to ensure that bail conditions set by the court are realistic, might increase compliance and thereby reduce the resort to custodial remands.
While the above themes were characterised by a high level of consensus across the reviews analysed, the report also noted a divergence of views as regards the philosophical stance which should underpin youth justice arrangements. The review of Victoria’s youth justice system, for instance, argued that there was an insufficient attention paid, within the State, to addressing ‘criminogenic risk factors’ and a corresponding over-emphasis on the child’s welfare, undermining ‘young people’s ability to take responsibility for their own actions, problematically perpetuating the narrative that all young people are victims’.
Conversely, other reviews, such as that commissioned by Queensland, had advocated approaches which understood children in conflict with the law as ‘victims of circumstance and disadvantage’ and encouraged the adoption of trauma-informed perspectives. The authors of the report conclude that, while such debates persist, developing a shared youth justice ethos across all agencies and jurisdictions within Australia will prove to be a considerable challenge. Consistency of approach depends on developing a consensus as to whether children entering the youth justice system ‘should primarily be treated as offenders or victims’:
Youth Justice in Australia: themes from recent inquiries, by Garner Clancey, Sindy Wang and Brenda Lin, is published by the Australian Institute of Criminology, and is available at: https://www.aic.gov.au/sites/default/files/2020-09/ti605_youth_justice_in_australia.pdf
‘Child Criminal Exploitation’ in England and Wales Linked in Different Ways to School Exclusion
There has been a growing recognition, in England and Wales, that children involved in forms of behaviour which hitherto would have been seen, and responded to, as serious offending, might more appropriately be regarded as victims of child criminal exploitation (CCE). Government guidance, published in 2018, noted moreover that such an understanding might be legitimate even if ‘the activity appears consensual’. This focus on children as victims rather than perpetrators has been adopted particularly in relation to the emergence of ‘out of town’ drug distribution networks, commonly referred to as ‘county lines’ (a reference to the use of dedicated mobile phone lines) which are, in turn, frequently associated with gang activity that puts children at risk of exposure to coercion, intimidation and violence.
The Modern Slavery Act 2015 provides a defence, under certain circumstances, for individuals below the age of 18 years who commit an offence as a direct consequence of being a victim of exploitation. In most cases, a successful defence of this sort will require a referral by a ‘first responder’ agency (a range of statutory and non-governmental organisations with the requisite authority) to the National Referral Mechanism (NRM), a division of the Home Office, which makes a formal determination as to whether or not the child has been a victim of modern slavery.
An overview of child trafficking in the United Kingdom, published in October 2020, suggests that CCE is rising as a proportion of referrals made to the NRM, in respect of children, as awareness of the issue has become more widespread. Statistical data released by the Home Office confirm that trend. Criminal exploitation was recorded as a distinct category for the first time from quarter four (October to December) of 2019 and, in that 3-month period, accounted for 46 per cent of referrals on children made to the NRM; as shown in Table 2, by the third quarter (July to September) of 2020, that proportion had grown to 55 per cent.
Referrals to the NRM in respect of children on the grounds of CCE as a proportion of total referrals on children: Quarter 4 2019 to Quarter 3 2020.
CCE: child criminal exploitation.
Once a referral has been received, decisions are made through a two-stage process. Within 5 days (where possible), the NRM will make a ‘Reasonable Grounds’ decision to determine whether it ‘suspects but cannot prove’ that the individual is a potential victim of modern slavery. Where reasonable grounds are established, further investigations will be undertaken prior to a ‘Conclusive Grounds’ determination which will indicate whether, on the balance of probabilities, the individual is to receive ongoing support as a victim of modern slavery.
A positive Conclusive Grounds decision does not guarantee that criminal proceedings are not instigated, but a guide for criminal practitioners representing children, produced by the Youth Justice Legal Centre, notes that such as determination has a number of advantages in this regard. In particular, it
will have ‘persuasive value’ with the Crown Prosecution Service in relation to the decision as to whether to proceed with prosecution,
is admissible as defence evidence in relation to offences that have been committed in the context of exploitation, and
may constitute a defence under the Modern Slavery Act 2015 or provide a basis for arguing that offences were committed under duress.
Research by Just for Kids Law, published in August 2020, highlights a clear, albeit complex, relationship between school exclusion and becoming vulnerable to CCE. Exclusion from school can impact negatively on a child’s aspirations, reinforcing a sense that they do not have a future making them more susceptible to the allures of exploitation. At the same time, placement in alternative educational provision results in children being under supervision of teaching staff for fewer hours a week while also providing a geographical focus for potential exploiters. As one 17-year-old child, cited in the report, puts it,
There’s nothing going for you [once you’re excluded] nobody really cares, so they get involved in crime . . . people expect it anyway.
The statistical correlation between exclusion and involvement in behaviour indicative of CCE may also reflect other processes. The research suggests that the behaviour of some children, who are already subject to exploitation while in mainstream education, may lead to their exclusion, particularly as many schools adopt a zero-tolerance policy towards drug possession and weapons carrying, both of which are common among victims of CCE. Where this occurs, exclusion exacerbates the problem since it tends to further facilitate
that young person’s exploitation and punishes them for what is clearly a critical safeguarding issue.
There is also increasing evidence of ‘exclusion by design’ where exclusion from school is deliberately engineered by those who are potential exploiters, through encouraging forms of behaviour likely to trigger such a response from educational authorities, in order to increase the child’s susceptibility and make them easier to control.
The authors of the research argue that it is anomalous that evidence of CCE may provide a defence in the criminal courts but that there are no equivalent provisions in guidance for schools that require them to consider whether exploitation may be an underlying factor in a child’s problematic behaviour in determining whether or not they should be excluded:
Modern Slavery Act: 2015 – Statutory Guidance for England and Wales’ Home Office, April 2020, published by the Home Office, is available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/939411/Modern_Slavery_Statutory_Guidance__EW__Non-Statutory_Guidance__SNI__v1.03_.pdf Child trafficking in the UK 2020: a snapshot, published by ECPAT UK, is available at: https://www.ecpat.org.uk/child-trafficking-in-the-uk-2020-snapshot Figures on referrals to the NRM in respect of child criminal exploitation are given in Modern Slavery: National Referral Mechanism and duty to notify statistics, published by the Home Office and available at: https://www.gov.uk/government/collections/national-referral-mechanism-statistics Child criminal exploitation: legal guide number 3 is published by the Youth Justice Legal Centre and is available at: https://yjlc.uk/legal-guide-child-criminal-exploitation/ Excluded, exploited, forgotten: childhood criminal exploitation and school exclusions is published by Just for Kids Law and the Children’s Rights Alliance for England and is available at: https://justforkidslaw.org/what-we-do/fighting-change/campaigning/school-exclusions/excluded-exploited-forgotten-childhood-criminal-exploitation-and-school-exclusions
Campaigners in England and Wales Make the Case for the Abolition of Child Imprisonment
In December 2016, in response to a review of youth justice undertaken by Charlie Taylor at the behest of the Ministry of Justice, the government agreed that placement of children, subject to custodial disposals, in YOIs and STCs should be phased out across England and Wales. This would be achieved by the continued placement of particularly vulnerable children in SCHs and the development of a network of ‘secure schools’ that would replace YOIs and STCs.
A report by the End Child Imprisonment campaign, published in December 2020, argues that progress towards the abolition of, what it terms, child prisons has been far too slow. Since the pledge to discontinue the use of YOIs and STCs, one pilot secure school has been announced, but this is not scheduled to open before 2022. The report points out that
If current numbers of children in custody stay the same, at this rate of government (in)action it would take at least another half century for child prisons to close.
Indeed, since the government published its commitment to close YOIs, the proportion of children deprived of their liberty who are detained in such institutions has actually risen, from 72 per cent in April 2016 to 75 per cent in April 2020.
The report adopts a question-and-answer format that addresses a range of potential challenges to removing children from prisons. Central to the argument is that many children currently subject to youth justice detention do not pose a serious risk to the public and could accordingly be safely accommodated in the community – either within their own homes or, where they are looked after by the local authority, in residential provision or foster care. Appropriate use of non-secure therapeutic facilities could also reduce the number of children deprived of their liberty by the criminal courts.
The report endorses the proposal of the Standing Committee for Youth Justice that legislative restrictions on imposing custody on children should be tightened to ensure that detention only occurs where the child poses a serious risk of harm to the public to
preclude the inappropriate deprivation of liberty for non-violent or persistent minor offending.
Wide geographic differences in the use of child imprisonment are also highlighted: in 2019, for instance, 8.7 per cent of court disposals for children in Yorkshire and the West Midlands led to custody, whereas the equivalent figure in the South West was 3.4 per cent. The report argues that maximising good practice would enable areas with a higher use of incarceration to approach levels achieved in localities where deprivation of liberty is lower. The report estimates that the population of the children’s secure estate could be reduced by at least one third through such measures.
End Child Imprisonment concurs with the government’s recently assessment, in a sentencing White Paper, that SCHs ‘come closest to delivering the principles of best practice in youth custody’. It acknowledges that a current shortage of SCH provision means that there is not sufficient capacity in that sector to accommodate those children currently in YOIs and STCs. The report however highlights the closure of 15 SCHs between 2003 and 2018 and suggests that, were that capacity to be restored, the closure of child prisons would become a realistic option:
Charlie Taylor’s Review of the Youth Justice System in England and Wales and The government response to Charlie Taylor’s Review of the Youth Justice System are both available at: https://www.gov.uk/government/publications/review-of-the-youth-justice-system The case of ending child imprisonment: questions and answers, is published by the End Child Imprisonment Campaign and is available at: https://article39.org.uk/endchildimprisonment/ Ensuring custody is the last resort for children in England and Wales is published by the Standing Committee for Youth Justice and is available at: http://scyj.org.uk/wp-content/uploads/2020/06/Ensuring-custody-is-the-last-resort-FINAL.pdf The government White Paper, A Smarter Approach to Sentencing, is available at: https://www.gov.uk/government/publications/a-smarter-approach-to-sentencing
Almost Two Thirds of Children in Secure Care in Scotland Have Experienced Four or More ‘Adverse Childhood Experiences’ With Exposure to Adversity Significantly Higher for Girls
Analysis of the results from the Scottish secure care census, published in July 2020 by the Children and Young People’s Centre for Justice, based on snapshot data in respect of the 87 children in secure care on a single day in 2018, shows that secure provision is increasingly being used for girls. Females accounted for 53 per cent of the secured population; 2 per cent were transgender and the remaining 45 per cent were boys. The 46 girls in secure care on the census day was the highest number recorded over the 20-year period for which data are available.
This finding does not however simply reflect a shift in the gender of secured children from Scotland since, at the point of census, 37 per cent of children resident in the five units were placed by English local authorities, reflecting a shortage of secure accommodation within the latter country. One child from Wales was also a resident on the census day. There was moreover a marked difference in the gender mix of children from England and those from Scotland: 56 per cent of the latter were boys, whereas 75 per cent of the former were girls. This divergence was in part a function of the fact that there is no legal provision for placing English children incarcerated through youth justice proceedings in Scottish establishments. As consequence, all of the English children captured in the census had been secured in welfare proceedings, which are more common in respect of girls. By contract, the cohort of Scottish children included those deprived of their liberty on offence grounds and those secured for safeguarding reasons.
As shown in Table 3, the average (mode) age of children in secure care, both boys and girls, was 15 years, and around two thirds were aged 15 years or older. This age distribution is indicative of a substantial rise over time: between 2002 and 2005, fewer than half of children in secure care were above the age of 15 years. Children placed by Scottish local authorities also tended to be older than their counterparts from England.
Age distribution of boys and girls in secure care: 2002/2005 and 2018.
The author of report suggests that one potential reason for this shift in the age profile is an increasing recognition that secure care should be reserved as a measure of last resort, with alternative options deployed before secure accommodation. It may also reflect an increased use in compulsory supervision orders for children beyond the age of 16 years who might otherwise be remanded or sentenced to periods in a young offender institute. The change in the age distribution might accordingly be regarded as a positive indicator.
Children were disproportionately drawn from poor and disadvantaged communities. Eighty per cent of those placed by Scottish local authorities were considered to be living in relative poverty. Scottish children were also more than twice as likely to come from areas classified as being in the two highest tiers of deprivation: 45 per cent of those in secure care compared with 22 per cent of all Scottish children. Conversely, while more than one fifth of children across Scotland reside in areas from within the two tiers of least deprivation, none of those in secure care on the day of the census came from such areas.
Almost all of the secure care population had experienced at least 1 of 10 adverse childhood experiences (ACEs). Just 2 per cent had not encountered any ACEs by comparison with over half of all children in England and Wales and more than one third of children in Scotland. Moreover, multiple exposure to ACEs was common: 64 per cent of children in secure care had experienced four or more. Girls were more likely than boys to have encountered each of the individual ACEs and they were also significantly more likely, as shown in Table 4, to have experienced multiple ACEs: almost half of boys had experienced 4 or more ACEs, but more than 8 in 10 girls had done so. Boys had, on average, been exposed to an average of 3.77 ACEs; the equivalent figure for girls was 5.96.
Number of ACEs experienced by boys and girls in secure care.
ACEs: adverse childhood experiences.
Children placed by English local authorities had higher levels of exposure to ACEs than their Scottish counterparts (an average of 5.63 against 4.42), but this difference was an artefact of the different gender composition of the two groups, with girls having a higher representation among children placed from outside of Scotland. For children from Scotland, there was a clear correlation between assessed poverty and exposure to ACEs: those living in relative poverty had a mean ACE exposure of 4.89 compared with 2.55 for the rest of the sample.
The author of the report concludes that the high prevalence of ACE exposure among children in secure care highlights the need to resource adequately interventions that have been shown to prevent or ameliorate such negative occurrences:
These steps could reduce the risk of these factors contributing to circumstances which necessitate care within a secure setting. ACEs, Places and Status: Results from the 2018 Scottish Secure Care Census, by Ross Gibson, is published by the Children’s and Young People’s Centre for Justice and is available at: https://www.cycj.org.uk/wp-content/uploads/2020/07/ACEs-Places-and-Status.pdf