Thinking Outside: Alternatives to remand for children

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Children in remand are among the most vulnerable and disadvantaged in our community. Julie Boffa and Michael Livingstone outline the findings of a major new report by Jesuit Social Services that explores the experiences of children on remand and proposes reforms to legislation, policy and practice, including raising the age of criminal responsibility to 12 years across Australia.

How to reform remand for children? That’s a question that takes us far outside the four walls of any custodial facility as we confirmed recently in Jesuit Social Services’ Thinking Outside: Alternatives to remand for children. Exploring who are the children on remand and what are their pathways through the criminal justice system, the research canvassed a broad cross-section of children’s experiences from early childhood to patterns of disadvantage and contact with child protection, police and youth justice. Our conclusions lead us to propose a better way, involving a broad and multilayered approach to respond to children’s behaviour and the ‘web of disadvantage’1 that underlies it.

As well as an extensive review of relevant literature and policy, Thinking Outside drew on primary data provided by the Department of Human Services (DHS) and Victoria Police, observations of Children’s Court proceedings, and interviews with young people who had experienced remand. DHS data included all children and young people issued with youth justice orders in 2010, all preceding orders for these children, and all subsequent orders through to the time of data extraction (May 2012). Police Law Enforcement Assistance Program (LEAP) data included alleged offenders, 10-17 years of age, in the 2010–11 financial year, and 10 year trend data across a range of variables. In addition, DHS undertook a data matching exercise to identify the child protection involvement of a small group of the youngest children on remand, those 10–12 years old.

Some of the findings and conclusions of Thinking Outside are presented below. The full research report and the summary report can be found at www.jss.org.au.

Who are the children on remand?

Thinking Outside confirms that children on remand in Victoria are among the most vulnerable and disadvantaged in our community. This is consistent with findings of previous research which has shown that children in detention are more likely to be victims of abuse, trauma, and neglect. They also have higher than normal rates of drug and alcohol abuse, mental illness, intellectual disability, child protection involvement and school exclusion. Evidence has also shown us that children who enter the criminal justice system at a younger age are likely to offend more frequently and have longer criminal careers.

Previous research also finds that the characteristics of children in custody can often be traced to the family, school and community environments in which they have been raised. Although no two children are the same, common factors such as peer influence, parenting practices, the strength of social bonds, the absence of pathways into learning and employment, poverty and disadvantage can influence involvement in the criminal justice system. This is particularly evident for Aboriginal children, overrepresented in the criminal justice system in all States and Territories across Australia.

Findings of Thinking Outside extended this profile of children on remand in Victoria:

  • 25 per cent of children on youth justice orders in 2010 lived in 2.6 per cent of postcodes in Victoria.
  • Children aged 14 or younger when first involved in the criminal justice system were more likely to come from areas with higher rates of missed maternal and child health consultations and higher levels of developmental vulnerability on the Australian Early Developmental Index.
  • Children younger than 13 years of age made up only 19 per cent of alleged offenders aged 10–17 in 2010–11. However, of the same sample of offenders, 36 per cent had their first recorded offence at the age of 13 or younger. For Aboriginal children this figure was 64 per cent.
  • Aboriginal children presented younger and were overrepresented at all stages of the youth justice system compared to non-Aboriginal children. For example, 57 per cent of Aboriginal children in custody in 2010 received a first order at 14 or younger compared with 17 per cent of non-Aboriginal children.
  • While only a very small number of the youngest children with youth justice orders in 2010 experienced remand at any time over the course of their youth justice involvement3, all 27 children first remanded at 10–12 years of age were known to Child Protection, 52 per cent were known to Child Protection before their third birthday (some as young as three days of age) and 30 per cent were Aboriginal. Over the course of their involvement with youth justice, these children experienced three times more orders than other children with orders in 2010, and more average days in custody than children first remanded at older ages, despite many of the children still being 16 or under when the data was extracted.
  • Children subject to remand, particularly long periods of remand, are among the most at risk within the youth justice system, as measured by the Victorian Offenders Need Inventory for Young people (VONIY).

Alongside the need for locally based, early intervention services, Thinking Outside concluded that a concerning sub-group of children who present to criminal justice authorities have a high risk profile. This profile – Aboriginal children, children known to child protection, children with multiple police contacts or criminal justice involvement at 14 years or younger – must trigger an intensive service response. In order to enable more constructive futures, such reform must target the breadth of children’s underlying needs, as seen below, independent of their stage within the criminal justice system.

What are their pathways on remand?

As gatekeepers to the justice system, police play a critical role in children’s pathway to or away from remand. Central to this are police decisions to arrest children or not. Where a child is arrested, then the question of remand or bail arises. Despite Law Reform Commission recommendations, Victoria still lacks a legislative framework governing diversion. In this context, an increase in the rate of arrests for children (up 5 per cent over the decade to 2010–11 despite a 9 per cent reduction in crime in the 10–17 year age range), proportionally greatest among children 13 years or younger, is of concern.

Internationally, such young children are generally not dealt with through the criminal justice system. Across Europe, for example, the median age of criminal responsibility is 14 years, with approaches to younger children including welfare or educational responses.4 In Victoria the age of criminal responsibility is 10, the norm across Australia.

Thinking Outside proposes lifting this to 12, advocating that no primary school child should be dealt with through the criminal justice system.

Despite Victoria’s having the lowest rates of children on remand in Australia5, Thinking Outside concluded that some children are still experiencing remand unnecessarily. We found that 80 per cent of arrests happened outside of business hours when access to support services is most limited. Twice as many after-hours weekend (40 per cent) as weekday (21 per cent) remand admissions are for one to three days. For weekend admissions, this means a child is remanded on a Saturday or Sunday by a Bail Justice then released on Monday at the next court sitting. In response Thinking Outside calls for reforms that introduce child specific bail criteria, including restraints on remand where a custody sentence is unlikely, and strengthening supports available for children at risk of remand outside of business hours.

REFORM PROPOSALS
1.Intervene early and locally
2.Focus on prevention
3.Target Aboriginal disadvantage
4.Strengthen legislative protections for children
5.Maximise diversion from remand
6.Intensify support for the most vulnerable

Develop infrastructure to build evidence

Worryingly, a significant number of children had repeated and extended exposure to remand: 32 percent of children or young people (46 per cent of young Aboriginals) issued with youth justice orders in 2010 experienced remand at some time over their childhood involvement with the justice system. The majority of these children (60 per cent) experienced multiple admissions: 104 of the 321 children or young people who experienced an episode of remand during 2010 that lasted for 21 days or less experienced another that lasted for more than 21 days in the same year. Combined with what we know of the profile of children on remand, the service response to children must be of sufficient intensity to meet their multiple needs, and be able to provide continuity of care in and out of custody.

How do we better respond?

As a community services organisation questioning how to better respond to children at risk of remand, Jesuit Social Services was continually drawn to the larger question of our underpinning values and approach to children in the justice system. Our decision to use the word children throughout the report rather than the more usual young people was part of our answer to this, for children they are as defined by law (Children Youth and Families Act 2005) and children they are developmentally, still maturing and vulnerable.

A particular issue that arose is what we called ‘the paradox of remand’ – the observation that while children were placed in remand on the basis of decision makers’ beliefs about their ‘unacceptable risk’, in Victoria their indeterminate status as neither convicted nor sentenced effectively paralyses the system’s response to the underlying causes of that risk for fear of implying guilt. This itself surfaces an underlying tension in our approach to children in the justice system more broadly – the clash between what is commonly described as the justice model, favouring the impartial dispensation of laws aimed at ensuring efficiency and due process, and the welfare model which focuses primarily on behaviour change and crime reduction through interventions to address the underlying causes of offending.

Through our increased understanding of the profile and experience of children on, or at risk of, remand, our resolution to these tensions was to underpin proposed reforms with a number of guiding principles. Integral to these was that justice interventions be as limited as possible, while welfare responses should be expansive as possible.

From this position, key recommendations of Thinking Outside include:

  • Raise the age of criminal responsibility to 12 years, consistent with United Nations recommendations of the lowest acceptable age.
  • Introduce a legislative framework for diversion and child specific bail criteria.
  • Reduce Aboriginal over-representation.
  • Increase the capacity of after-hours services.
  • Introduce intensive, community based assessment and supports matched to the needs of children which are triggered by, but independent of their stage in the justice system.

Julie Boffa is Policy Manager at Jesuit Social Services. Michael Livingstone is Policy Officer. Thinking Outside: Alternatives to remand for children can be found at http://www.jss.org.au/policy-and-advocacy/publications-and-research

1. T Vinson, Dropping off the Edge: The Distribution of Disadvantage in Australia, Jesuit Social Services & Catholic Social Services Australia, Melbourne and Canberra, 2007
2. N Hazel, Cross-national comparison of youth justice, Youth Justice Board for England and Wales, 2008.
3. From a child’s first youth justice order to the date of data extraction, 4 May 2012
4. N Hazel, op. cit.
5. Australian Institute of Health and Welfare 2012, ‘Juvenile Justice in Australia 2010-11’. Juvenile justice series no. 10, JUV 10, AIHW, Canberra.

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