Decisions to prosecute Looked After Children require special consideration. The 10 Point Checklist is a key tool when deciding what action to take when looked after children offend in children’s homes.
Ita Farrelly shares her experience that police officers, defence lawyers, prosecutors and members of the judiciary are often unaware this guidance and therefore Looked After Children are being unnecessarily prosecuted.
The 10 Point Checklist requires a systematic approach to the decision to prosecute a Looked After Child (LAC) who offends in Children’s Homes. The decision-maker is required to ask the following questions:
- What is the Disciplinary Policy of the Children Home?
- Why the Police have been involved and is it as agreed in the Policy?
- Has any informal / disciplinary action already been taken?
- Has there been an apology or reparation?
- What are the Victim’s views?
- What are the Social Worker’s views?
- What is the Care Plan for the Looked After Child?
- What is said of the recent behaviour of the Looked After Child?
- Are there any aggravating or mitigating features?
Failure to follow this guidance could result in proceedings for judicial review1 – see CPS Legal Guidance on Young Offenders (Offending Behaviour in Children’s Homes – Decision to Prosecute).
The over representation of Looked After Children in the criminal justice system is well documented. It has been highlighted most recently by The Prison Reform Trust – Keeping Children in Care Out of Trouble, a Review by Lord Laming 2016 and in Charlie Taylor’s Youth Justice Review (Interim Report), February 2016, Ministry of Justice.
In my view, the lack of knowledge of the 10 Point Checklist is significantly contributing to the fact that Looked After Children are six times more likely than other young people to be cautioned or convicted of a crime.2 All police officers should be aware of the need to complete the 10 Point Checklist for any child, whether legally represented or not, at the investigation stage. The CPS should ensure that this is completed for cases where CPS lawyers have made the charging decision or have reviewed the evidence. Defence solicitors and barristers at every stage of the proceedings must ensure that the relevant information has been sought and considered. Courts should be sympathetic to any application to adjourn proceedings where there is an absence of this review.
There are many reasons why a Looked After Child may offend within a Care Home, Foster Home or Residential Facility. It may be that the Children’s Home is not fit for purpose, it has too many inexperienced staff, the child’s Care Plan no longer fulfils their needs, the placement is unsuitable, there are difficulties in their relationship with other residents or staff, bullying or peer group pressure, the child has suffered traumatic personal events, emotional hurt, has behavioural difficulties, medical issues, grief, fear, immaturity and the absence of support from friends and family.
The context of any offending must always be carefully considered. The decision to impose a formal out of court disposal or prosecute should always be taken as a last resort after informal measures and diversions have all been fully explored and considered.
Helpful guidance includes:
- CPS Legal Guidance on Young Offenders (Offending Behaviour in Children’s Homes)
- Children’s Homes: National Minimum Standards, Department for Education, 2011
For all parties within the Youth Justice System, the prevention of offending and the welfare of the child is paramount. The Howard League for Penal Reform has recently announced the launch of a two year programme to end the criminalisation of children in residential care. Whilst this programme is ongoing, lawyers representing children must possess sufficient knowledge of the 10 Point Plan and other examples of best practice, guidance and policy to ensure Looked After Children receive the highest quality representation and to guard against the unnecessary criminalisation of children.
By Ita Farrelly, Partner, Taylor Haldane Barlex Solicitors LLP