Can local agreements reduce the criminalisation of children in care and care leavers?

The National Protocol on Reducing Unnecessary Criminalisation of Looked-after Children and Care Leavers (the “Protocol”) is a call by the government (a cross-departmental publication) for local authorities to implement local agreements to effect the Protocol itself. This article explores the challenges and possibilities of implementing such local agreements.


Key analyses presented in the article form part of the ‘Disrupting the Routes between Care and Custody’ project. The article notes that children in care who come into contact with the police are more likely to be convicted – rather than receive a caution or conditional caution – than children in the general population. Further, the article states that up to half of children and young people in custody at any one time are, or have been, looked after.

By then drawing on academic research combined with an analysis of 36 local protocols from across England and Wales, the article then explores the effectiveness of such local protocols as a tool to reduce criminalisation of looked-after children and care leavers. Key observations based on such analysis include:

  • The focus of local protocols varies. Thirty-one of the local protocols examined focus on reducing unnecessary criminalisation of children in care and/or care leavers, whereas five focus on supporting children in care and/or care leavers already involved with justice systems.
  • The form of local protocols also varies. Twenty-three of the local protocols examined are final documents, nine are in draft form and it was unclear whether the remaining four local protocols were draft or final documents.
  • The length and scope of local protocols varies. Nine of the local protocols were between 0-9 pages, seventeen were between 10-19 pages and ten were 20 pages or more. In this regard, the article highlights that there are stark differences in the level of detail provided, with some including basic outlines of approaches and others providing extensive contextual information including legislation, relevant literature and reference to good practice.
  • The vast majority of the local protocols examined take a ‘one size fits all’ approach to reducing criminalisation and/or supporting those already in justice systems. Only six of the local protocols made specific reference to gender and, further, only two of the local protocols highlight that care-experienced girls and young women are at an increased risk of criminalisation compared with non-care-experienced girls and young women.

At the outset, the article acknowledges that publication of the Protocol in 2018 represented national recognition of the need to divert children in care and care leavers way from contact with formal justice systems. However, the article ultimately promotes the notion of protecting children in care and care leavers by placing a statutory duty on local authorities to prevent unnecessary criminalisation and in order to improve life chances.


For practitioners representing children or young adults who are or have been in care, the article is insightful reading on the impact of the Protocol on reducing criminalisation of looked-after children and care leavers. The article sets out key observations based on an extensive analysis of local protocols across England and Wales which, in turn, offers hands-on guidance for practitioners going forwards.   Practitioners making representations against criminalisation in cases involving looked after children should refer to both the national protocol and local protocols where possible to strengthen their case.

Written by Krishan Chauhan, Associate at Paul Hastings (Europe) LLP