Care experienced children and justice: The challenges of trying to disentangle systemic inequality

One of the many challenges care experienced children and young people face is that they are disproportionately more likely to come into contact with the justice system(s). Reflecting on both the ‘Sentencing of Care Experienced Young People‘ webinar and recent Court Report Refresher training CYCJ Practice Development Advisor Ross Gibson considers the scale of the challenge when it comes to disentangling an inequitable system. 

A recent CYCJ webinar heard from a number of speakers who considered the role that care experience had upon interaction with the justice system.  As the speakers highlighted, a range of factors contributed to care experienced young people being overrepresented within the justice system, with longstanding impacts upon those caught up by judicial contact.

We heard that residential childcare can be both criminogenic and traumagenic environments; their culture, ethos and relationship with police can often create undue criminalisation and exacerbate – or even create – trauma.  We also heard that amongst a range of factors including inappropriate placements and a lack of suitable responses to traumatised behaviour, the judicial process itself plays a role in the disproportionate and acute levels of involvement in the justice system.

Whilst the presentation delivered by Dr Claire Paterson-Young (ISII, University of Northampton), Dr Tatiana Corrales (Monash University, AUS) and Dr Ian Warren (Deakin University, AUS) focused on England and Australia – and echoed the recent work of the England-based academic researcher Jo Staines – there is much within the presentation that chimes with the situation here in Scotland.  CYCJ’s participation team have repeatedly heard about the disproportionate response to conflict with the law from groups such as Inside Out, Youth Just Us and Starr, whilst Scotland’s Independent Care Review concluded that action is required to address this inequity. A few years ago CYCJ carried out research which highlighted the difficult task staff within residential child care face when trying to find the right approach to incident within care. The voices of those with lived experience of care and from the academic world each speak of those with experience of residential childcare facing more acute levels of exposure to the justice system than their peers elsewhere.

Somewhat serendipitously, CYCJ hosted a session where those producing Justice Social Work Reports were briefed on the introduction of a new template and guidance on how to produce such reports.  The new guidance brings with it an opportunity for those producing the reports to contextualise the lives of those who come into conflict with the law, including people who have experience of care.  Throughout the report are several opportunities to highlight the impact, and cause, of residential childcare which may go some small way towards assisting the judicial task of finding a disposal which best serves the various, and often competing, demands of justice.

Whilst this a positive step, I wonder if there are unintended consequences of taking this approach.  I wonder if those writing the reports may run the risk of conflating risk and need, therefore heightening the concern that a sentencer may have when deliberating on a disposal. Unless the author succeeds in articulating the resilience, strength and protective factors that are often borne from the support a child receives through care, will a judge or sheriff merely be worried about the complex reasons that precipitated that period of care?  Does greater focus within court reports on episodes of trauma and adversity – including adverse childhood experiences – bring with it a danger that the person in question is deemed to pose a greater risk to themselves or others? Does information contained within a court report – ostensibly there to provide context to a child’s circumstances and an insight into their background – merely serve to heighten the concern that sentencers and others may have over how best to respond to a person who has been convicted in court?  Is there a risk that a comprehensive court report which highlights a child’s history within residential child care, or contact with child protection mechanisms, will up-tariff the matter in the mind of the sentencer, rather than help contextualise the circumstances that the person now finds themselves in? These questions parallel the debate amongst some in the care experienced community about the merits or otherwise of care experience being made a protected characteristic, and whether or not that would lead to improved outcomes and lives for members of that community.

I suppose a lot of this comes down to the sheriffs and judges who will be  making the decisions over what response the court makes, and perhaps the application of the sentencing guidelines for those under 25 is illustrative of  what could be achieved.  Just as sentencers are now expected to consider the role of rehabilitation, and to consider the impact of brain development when passing judgement, would similar guidance drafted on the basis of a person’s care experience be of merit?  Would it lead to more compassionate sentencing, with disposals that respond to the areas of a person’s life that precipitated the offence in question? Or would it focus on the aspects where they need more support?  These could, of course, be completely different issues, but I wonder if there is a potential risk (if indeed it does not already exist) that justice disposals are used to respond to needs that ought to be addressed through the lifelong support that care experience people have recently called for.  Surely the justice system is not the place for this sort of support to be provided, yet I know if happens on a daily basis. I also wonder if foregrounding and emphasising the care experience of the person –which may have little or no relevance to the matter under consideration – runs the risk of tapping into the unconscious bias and prejudice that is inherent throughout all strands of society. How does this kelp achieve what was set out within the promise?

To add to this seemingly endless list of questions, I wonder what ‘recognising’ the impact of care would look like in our court reports, or indeed throughout wider society?  Would it be an acknowledgment that children within residential child care often come into contact with the law due to behaviours that would have been dealt with far differently by parents and carers?  If that were to be the case, surely we must address that as a matter of urgency.  Is it an acknowledgement of the high rates of mental ill-health amongst this group? Does it reflect the paucity of mental health provision?  How do we frame and contextualise circumstances from a person’s lives that were completely outwith their control in a way that respects their agency and human worth whilst also meeting the needs of court?  

Finally, is this another example of the ‘failure demand’ that Katherine Trebeck warned of within the moneyAre we focusing on the symptoms of myriad problems, rather than the cause?  And if so, what are we going to do about it?

About the Author: Ross Gibson is a Practice Development Advisor at CYCJ. His work currently includes supporting the workforce to understand and explore the implications of the Children (Care and Justice)(Scotland) Bill, and supporting the National Leadership Network.  

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