The great majority of children in care do not commit criminal offences, yet there is a stubborn over-representation of care leavers in the criminal justice system. Less than 1% of the population have been in the care system, yet a recent review chaired by Lord Laming reports that about 50% of children in custody have been in care. This scandalous figure becomes particularly troubling when we consider that just 2% of children are in care specifically because of their own “socially unacceptable behaviour”, yet 60% are there because of traumatic abuse and neglect.
While care leavers are not inevitably more likely to commit offences, there has been a persistent tendency to blame individuals for their over-representation in the justice system. Explanations often refer to the extremely “complex needs” of the “damaged” children who go into care, as well as the “serious failings” of their families. But such language simply perpetuates the stigma attached to being in care and serves to divert attention away from the serious failings in some parts of our care and criminal justice systems.
Recent research highlights failings at various levels of the system – including the unnecessary criminalisation of some children in care for minor offences which would not have led to police involvement for children living at home with their own parents. A report by the Howard League for Penal Reform noted that this was a particular issue for those living in children’s homes, who were being criminalised at excessively high rates compared to all other groups of children.
Meanwhile, the Standing Committee for Youth Justice has also noted that the childhood criminal records system in England and Wales was one of the most punitive when compared to 15 other countries and regions. There is no means to “wipe” a criminal record acquired in childhood in England and Wales, and there are few ways to prevent the disclosure of relatively minor cautions and convictions. The consequences of unnecessarily criminalising vulnerable children in care therefore is that they may be bound to the mistakes of their past in a way that is simply not the case in other countries. And as the Edinburgh Study of Youth Transitions has shown, once in the justice system, young people are far more likely to return to it.
Letting children down
These issues are compounded by the fact that different areas of the country may treat young people leaving care differently, with many still escalated to independence far earlier than their peers. In 2015, the National Audit Office reported that services supporting those young people leaving care had deteriorated for seven consecutive years due to financial cuts and poor management, with many still leaving care before the age of 18.
There also continues to be widespread concern about the chronic shortage of appropriate accomodation for care leavers. For those caught up in the criminal justice system, either in prison or supervised on probation in the community, there remains a real risk that they could slip through the gaps, failing to receive the support that they may be entitled to under leaving care legislation, such as access to a personal advisor.
My own recent research with Patrick Williams of Manchester Metropolitan University has highlighted a lack of knowledge about care issues in some parts of the criminal justice system, as well as a fear among some practitioners of even asking whether individuals have a history of being in care.
We examined a unique project for care leavers going through an Intensive Alternative to Custody Order in which offenders receive a community-based sentence, rather than a custodial one. The project, delivered by the Care Leavers’ Association and known as “Clear Approach”, is a voluntary empowerment programme that aims to develop a supportive relationship with care leavers through one-to-one sessions as well as group work. But we identified various tensions in our interviews with practitioners working in one particular probation trust. Care leavers were frequently perceived as a “risky” client group and concerns about labelling and further stigmatising them actually inhibited efforts to identify them in the first place. This inevitably had a knock-on effect on who could be referred to benefit from a supportive and potentially empowering intervention.
Ongoing work that I have been involved in highlights a continuing lack of clarity in some areas over who has corporate parenting responsibility when children in care enter the justice system. This is the collective responsibility of a local authority, its employees and partner agencies to provide the best possible care for children who are looked after. Identification of “care leaver” status also remains a problem, not only for those supervised in the community, but also for those in custody who are at particular risk of being abandoned by their local authority.
These issues are particularly pertinent given that a new report published by the House of Commons Justice Select Committee argues that there is “overwhelming evidence” that the criminal justice system does not adequately address the distinct needs of young adults whose brains may still be developing up until the age of 25.
There are examples of good practice in some areas, as documented in the Laming Review. For example, the south east protocol is a regional initiative aimed at avoiding the prosecution of children in care, and prioritising restorative responses to challenging behaviour
But practices such as these are not sufficiently widespread and the issues facing children in care and care leavers in the criminal justice system must now be seriously addressed in a far more consistent and sustainable way. Strong political leadership is required to ensure that those who have been in care are diverted from the criminal justice system wherever possible. At the same time, care leavers already in the justice system must receive the support that they are entitled to, and which they deserve.