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Children and the Justice System – Children’s Commissioner proposes radical change

Children’s Commissioner’s report:  Children and the Justice System – Injustice or In Justice 

The Children’s Commissioner’s recently published report on children in the justice system identifies a number of systemic problems faced by young people in the criminal justice system and makes some radical recommendations for reform by drawing from robust research and comparisons with Scandinavian approaches to youth justice.  The report makes clear that despite the significant decline in the number of children and young people entering the criminal justice system over the last ten years, and the reduction in numbers of children and young people in custody, there is still a significant amount of work to be done to improve both the experiences and outcomes for children and young people in the criminal justice system.

The fundamental basis of the proposed changes is a “child-friendly” approach to youth justice, which focuses on the needs and rights of children and allows them to participate meaningfully when decisions are made about them. The system should focus on preventing the criminalisation of children and young people, and make diversion from prosecution a priority. Where this is not possible, therapeutic methods should be used as part of a commitment to rehabilitation as the primary aim of the secure estate for children, along with an emphasis on providing support for effective resettlement on release to reduce the incidence of reoffending.

Details

In this thorough and detailed report Anne Longfield, the current Children’s Commissioner, highlights the problems faced by children and young people at each stage of the criminal justice system: entering the system, in Court, in custody and upon release, and sets out radical proposals to the system which aim to get to the root cause of offending by children and young people and make rehabilitation its primary purpose.

The report notes that entry into the criminal justice system is seen by many children and young people as almost inevitable. Factors such as mental health issues and special education needs, care experience and school exclusion are prevalent in children and young people in the criminal justice system and that proactive work, such as that undertaken by charities such as Football Beyond Borders, can play a role in identifying children and young people at risk of entering the criminal justice system. In addition to this, formal diversion schemes used by the police and YOTs need careful scrutiny and data analysis to ensure that opportunities for diversion are available to all children and young people equally. Many organisations have raised concerns about whether BAME children and young people are as likely to be offered diversion from prosecution as their white counterparts. (See our recent commentary on the Howard League’s 2019 Research Briefing which identifies this as an area of concern.)

The ability of the Youth Court to adequately meet the needs of the population it is intended to serve is another area of concern highlighted in the report. The report states that the Youth Court is not successful in providing a more “child-friendly” environment and questions whether children and young people are supported to participate in and understand the proceedings in which they are involved, particularly given that the use of intermediaries is rare. Additionally, the issue of delay is one which has a more serious impact on children and young people in the criminal justice system than it does on adults given the disruption to education and social development caused by periods on remand, or subject to onerous bail conditions, and also the impact of crossing age thresholds during the course of proceedings. The report advocates a move to a system of Children’s Panels, which would focus more on the needs of the children before it, rather than on punishment for acts.

The impact of custody on children and young people is a central concern of the report, which sets out in detail the ways in which the current system of Secure Children’s Homes, Secure Training Centres and Young Offenders Institutions fails in providing the children and young people in its care with the environment and opportunity to be educated and rehabilitated.  A crucial factor is that the reduction in numbers of children and young people in custody has resulted in a “concentration of need”, with a higher proportion of sentences being served for serious offences, but also with a higher proportion of children and young people who have complex needs, often requiring therapeutic intervention. The report proposes a radical overhaul of the secure estate for children and young people, with a move to smaller settings, better trained staff and more therapeutic intervention.

A crucial stage of the criminal justice system which appears to have been overlooked by current policy is the support afforded to children and young people upon release. The report highlights that high re-offending rates are due to a lack of decisive action being taken to give children and young people opportunities for effective resettlement upon release, an area which should be addressed by policy as a matter of priority.

The key recommendations are as follows:

  • The expansion of early intervention services
  • Funding for schools to provide a range of activities outside of traditional school hours
  • A greater focus on avoiding exclusions
  • Improved data sharing between the Department for Education and the Ministry of Justice to identify key points for intervention
  • A raise in the age of criminal responsibility to 14 years of age
  • Evidence based diversion from prosecution and improved data collection to better understand the disparities in availability of diversion for BAME children and young people
  • A reform of the Youth Court to focus on the wider determinants of offending
  • A reduction of the custodial population, in particular the remand population
  • The establishment of a national network of accommodation providers to support young people leaving custody

Commentary

 The overriding message of the report is that, despite the progress made in keeping young people out of custody, there is a significant risk in assessing that this amounts to “job done”. A reduction in numbers is key; but this is the starting point, and the absolute minimum expectation, rather than the end in itself. The fact that the report proposes such a dramatic overhaul to the current system makes clear that the experience of children and young people in the criminal justice system falls far short of the standards we expect in a mature and wealthy democratic country.

Written by Vivien Cochrane. Senior Associate, Kingsley Napley LLP