Vulnerable children at the boundary of the criminal justice system

Keynote address at the Jesuit Social Services National Justice Symposium

Pushing the boundaries: rethinking the limits of children’s involvement in the criminal justice system.

 

CHECK AGAINST DELIVERY

 

1. Acknowledgments

Thank you, Father Frank Brenan, for your kind introduction. I also thank the Jesuit Social Services for the invitation to speak here this afternoon, at the opening of this important symposium on vulnerable children and the criminal justice system.

I too acknowledge the Wurundjeri and Boonwurrung peoples, who are the Traditional Custodians of the Land on which this meeting takes place, and pay my respects to their Elders past and present. Thank you also to Dean Stewart for your inspiring and thought provoking welcome to country.

I also acknowledge my fellow Children’s Commissioners, Howard Bath, the NT Children’s Commissioner, and Bernie Geary, the Victorian Principle Commissioner for Children and Young People, and also Julie Edwards, CEO, Jesuit Social Services and other esteemed guests.

2. Introduction

I am going to start with a few words from children in contact with the justice system. As you may know since I commenced as National Children’s Commissioner I have been conducting a listening tour, the Big Banter.

During the Big Banter I spoke face to face with around 1000 children and young people, and I also heard the views of approximately 650 other children through an online survey and postcards. I have also spoken with numerous child advocates across the country, and held seven child rights forums.

The purpose of the Big Banter was to hear from children and their advocates about what issues are most important for children, to inform my priorities for action, and to hear about how I could best engage in my future work.

One of the places I visited in June was the Bimberi Youth Justice Centre in the ACT, where the young people had prepared a barbecue lunch.

Like other mixed sex centres, there are often far fewer girls than boys.  The two girls at the Centre at the time said that they didn’t like doing activities with the boys and, that at times, they felt a bit intimidated.

Later when I sat with a group of boys, they were talking about going to court later in the week. I asked them how they felt about that.

The boys said that there were lots of people in the courts, including police, judges, court officers, social workers, and that this was very intimidating, and that they generally just look down. They also said they weren’t really sure what was happening there, or what they had to do.

One young Aboriginal boy said that when he was in court he felt like crying because of the shame.

And another boy recently arrived as a refugee from the Sudan, told me that his family had come to Australia with so much hope for the future, but now he feels it has all gone wrong and that he has let everyone down.

I also visited Adelaide Youth Training Centre (Kurlana Tapa) where I spoke with seven young girls.

Again, there was a general feeling of fear about going to court. The young girls singled out ‘shame’ as the worst part about going to court, and the fact that ‘everyone is looking at you’.

One girl being released didn’t want to go back to school because she was worried that she will not be allowed to see her friends as a condition, and that she wouldn’t fit back in.

The girls, like those at Bimberi in the ACT, felt marginalised from some of the activities at the centre, and at times, felt intimated by the boys. They tended to stay in their own units, doing things like scrap booking, rather than using the sporting and other facilities.

The girls said that they generally found school to be quite boring. However, they indicated that they don’t mind going at the Centre as at least it gives them something to do. Most said that they weren’t highly engaged in school in the community.

We talked about rights and child rights, which they didn’t really know that they had. They were very interested in the rights posters developed by the Commission and the fact that they had rights.

I also visited some children involved with Bankstown PCYC, some of whom were referred there by the police. Most of the children I spoke with at the PCYC also said they weren’t aware of their rights, although a couple came up with the ‘right to remain silent’ and the ‘right to an attorney’.

The young people I met with in Reiby Juvenile Justice Centre said that issues of respect, religious freedom and having a say were most important to them. The focus of their discussions was on family and basic needs. Some of the suggestions to help kids included: more things for free, like transport; and for there to be community service rather than fines.  Disengagement from school was an issue for most of the boys.  One child said that he didn’t go to school because it was boring, and that he would prefer if there were more sports or vocational programs, like bricklaying, which is available at Reiby.

These are only some of the views of children I met with during the Big Banter.

3. Why the voices of children are important

I wanted to begin with children’s voices, because so often they are invisible to the general public. I know many of you work with children in the juvenile justice system, and work with children themselves. Nonetheless, I think all too often we put in place policies, or make decisions about individual children, without the opportunity to check in with the very children we are trying to help.

There are many reasons why encouraging children and young people to have a say is vital. Here are just two of them.

First, children have a right to respect for their views, and to have their views taken into account in decisions which affect them. This right is set out in article 12 of the Convention on the Rights of the Child.

The Convention is the most ratified international human rights treaty in the world. A ground breaking treaty, the Convention made clear that children have the same human rights as adults, but that they also are entitled to special protection because of their unique vulnerabilities as children. By ratifying the Convention in 1990, Australia has promised to protect the rights of children as outlined in the Convention.

Article 12 is one of four guiding principles of the Convention, because children’s right to have their views respected is fundamental to all of the other rights in the Convention.

The second reason why I believe hearing children’s voices is so vital is that it helps us understand more clearly what needs to be done and allows us to get much more effective outcomes.

This is especially necessary for children in vulnerable situations, such as those involved in the juvenile justice system, where the decisions that are being made have a significant impact on their lives.

Some of you may be aware of the Queensland Commission for Children and Young People Views of Young People in Detention Centres Survey, which for three years has collected the views of children in detention across a range of issues to do with the conditions of their detention and legal matters, including ability to make complaints.¹ Their views are then used to make important practical recommendations on the administration of juvenile justice, and for the Queensland Commission’s own work in monitoring and protecting their rights.

It is telling that although most children in detention who participated in the Queensland survey knew about how to make a complaint, only about half reported believing that they would be taken seriously if they told a staff member they felt unsafe or worried about something. Helping children to speak out is only part of the solution: respecting their views and taking them into account is equally important.

4. Children in juvenile justice

Today we are here to discuss children at the boundaries of the criminal justice system, especially those at the younger end of the spectrum.

Many of you will be familiar with statistics on children in contact with juvenile justice, so I will not go into these in too much depth.

But according to AIHW, on an average day in 2011-12 there were almost 7000 young people aged 10 and older under youth justice supervision, with just over 1000 in detention.²

Some children are particularly at risk of being impacted on by the juvenile justice system.³

The reasons why children engage in criminal behaviour, and come into contact with the juvenile justice system, are complex and multiple-factorial.  Well-known risk factors include socio-economic disadvantage, drug and alcohol use, domestic violence, child maltreatment and neglect, disability, mental illness, and disengagement from school.

A recent study by Legal Aid NSW, analysing the 50 most frequent users of legal aid services between July 2005 and June 2010, gives a good picture of the complex and multiple needs of the high level users of legal aid. The study found that 80% of high level users were under 19, the majority male.⁴ Three quarters had used drugs and/or alcohol, nearly half had received a mental health diagnosis, and 72% had experienced abuse or neglect at home or had witnessed violence at home. Further, 94% had spent time in a juvenile detention centre, more than half had experienced homelessness and nearly half had spent time on out-of-home care. And, as many as 82% had been excluded, suspended or expelled from school.

Given the complexity and depth of the causes of criminal behaviour in children and young people, it is unsurprising that the solutions must also be comprehensive and focus on prevention, diversion from detention, rehabilitation and reintegration. This approach is supported by the United Nations Committee on the Rights of the Child, which I will talk about later.

5. The middle years 10-14 years

Some of the most vulnerable children in contact with the justice centre are those aged 10-14 years. In all states and territories of Australia, children and young people can be charged with a criminal offence if they are 10 and older.

According to a recent report by the AIHW, there were 1940 young people aged 10-14 years under youth justice supervision in 2011-12 (excluding WA and NT because data was not provided),⁵  17% of young people under supervision during the year.

The AIHW research shows that this early onset of first offence is a strong predictor of chronic, long-term offending.⁶ A high proportion of young people who were first supervised at age 10-14 remain involved in the youth justice system at older ages, and are likely to have more serious outcomes like detention.

It is important to remember that offending behaviour at this stage of life coincides with a stage of significant hormonal, physical and emotional development.

Puberty, which usually takes place over 2-5 years somewhere between 8-13 years of age, is a time of dramatic and rapid physical and hormonal change. There is also a great variation between children. While the effects of puberty hormones on behaviour are not generally well understood, the physical dimensions of this stage of life significantly impact on the physical and mental load carried by children at this time. As an example, during puberty a girl is likely to gain 20 cm in height and 20 kg in weight, at a time when they are also confronting increasing discussion about body image.⁷

Further, during this period the brain is maturing rapidly, which means it has a high level of plasticity.

This slide (the dynamic sequence of grey matter maturation over the cortical surface!) tells part of the story of what is going on for children in the middle years and why we have a special opportunity to intervene to make a positive impact on children’s future development and life course. 

 As we can see, profound structural and functional changes are dramatically overhauling brain functioning at this time. 

The development of the human brain begins with an overproduction of neurons in utero, followed by selective pruning of nerve cells and the connections between them over time - especially in the grey matter (the region of the brain made up of nerve cell bodies) and their dendrite branch extensions  (connections between cells).

In the pre-adolescent years, grey matter increases rapidly and then, in the adolescent and post- adolescent years grey matter decreases as a result of pruning.  

Neuro-imaging shows that the developing brain is particularly vulnerable to stress at this time which can lead to abnormal pruning and inhibition of growth of brain cells.

Those of you who work in the area of vulnerable children will have heard a lot in recent years about the impact of trauma on the development of neural pathways in the early years.  The message is that intervention is imperative when early experiences may compromise building neural pathways that are part of healthy brain development. This is because neural pathways impact on learning and responses throughout adolescence and in later life. 

The good news is that new and additional neural pathways can be built in adolescence.  This news can inform our thinking about opportunities for dedicated therapeutic intervention for individual children who may have experienced early traumas. It also influences our rethinking on how we can best support the transition from primary to high school – as an external disruption and dislocation that happens at the same time as the significant emotional and physical changes associated with puberty. 

In providing support to children we need to understand that the middle years brains are particularly attuned to oxytocin, and that they can do little about this.

Oxytocin is a neural hormone that makes social connections more rewarding - to the extent that children prefer the company of those their own age more than ever before or ever after.  They will privilege this interaction over others, even if it is anti-social in nature. They are also likely to find peer exclusion acutely painful: and they will struggle with emotional regulation.

It is therefore critical that we work with children who are offending, or at risk of offending, in these middle years, in a way that is sensitive to their developmental stage and individual backgrounds and circumstances. An improved environment can significantly alter a trajectory and change a child’s behaviour at this age.⁸

5. Aboriginal and Torres Strait Islander children

We are all acutely aware that Aboriginal and Torres Strait Islander children are overrepresented in the youth justice system, although the extent of this continues to shock us, given their numbers in the wider population. They are almost 16 times more likely to be under supervision on an average day in 2011-12 than a non-Indigenous young person aged 10–17.⁹

In detention, the differences are even more alarming. Aboriginal and Torres Strait Islander children aged 10-17 years were 31 times as likely as non-Indigenous young people to be in detention on an average night in the June quarter 2012, up from 27 times as likely in 2008.¹⁰

In the middle years, Aboriginal overrepresentation is particularly acute. Forty six per cent of all children aged 10-14 under youth justice in 2011-12 were Aboriginal despite making up less than 5 per cent of the population.  The median amount of time spent in detention when aged 10–14 was 31 days for Aboriginal young people, compared with 9 days for non-Aboriginal young people.¹¹

It is clear that the overrepresentation of Aboriginal and Torres Strait Islander children in statistics on poverty, drug and alcohol use and child protection play a part in many children’s contact with juvenile justice. Additional factors for Indigenous children include intergenerational trauma, experiences of racism, loss of cultural identity and connections, and exclusion from school. These factors need to be addressed for each and every child within the context of family and community, if we are to reduce criminal behaviour and create safer communities.

One way of ramping up the focus on prevention is the justice reinvestment approach.

In May 2013 I joined Commissioner Gooda (Aboriginal and Torres Strait Islander Social Justice Commissioner) as a Justice Reinvestment Champion for the NSW Justice Reinvestment Campaign for Aboriginal Young People.

Justice reinvestment is the idea that a portion of public funds, that would have been spent on covering the costs of law and order, imprisonment and tertiary care arrangements in communities that have a high concentration of offenders, is instead invested in community programs, services and activities aimed at addressing the underlying causes of crime, dislocation and disengagement in those communities.

Justice reinvestment was first developed in the United States. Since 2006 it has been implemented in 17 states, with some great successes. For example, in Texas, where money that would otherwise have been invested in prisons was spent on substance abuse services and early intervention in the health of infants, the growth in imprisonment was halted for the first time in years, to the extent that Texas is now closing prisons. In fact, it is estimated that in that State approximately $2 billion over a few years was saved as a result of justice reinvestment.

Justice reinvestment differentiates itself because it invests early in specific communities where there is the greatest number of offenders and community need, and it is overseen by those very communities who decide how funds are best spent to prevent crime in the short and the long run.

At the community level, we are seeing some really exciting work about what justice reinvestment could look like in Australia.

This photo is from a visit by Mick Gooda and myself to the Bourke community a few months ago, where we were invited by the community to talk about opportunities for justice reinvestment.

One of Bourke’s strengths is the established local governance structure. But despite this, what we’ve been hearing is that the community is not getting enough of a say into how money is spent and the way programs are run. Justice reinvestment has the potential to bring the community into these conversations and decisions.

It is still early days, but it is fantastic to see during our visit that the young people have a voice in this process. These teenagers, most of whom had left school, some with their own children, told us about some of the simple and practical things that would make life better for them: a bus to take them home in the evenings; someone to run footy competitions in the park after school; TAFE courses in mining, building, hairdressing and beauty; culturally safe and affordable playgroups and child care; and fixing the street lights so they would feel safe.

The next steps include mapping the existing resources going into the community and facilitating a process by which the community is empowered to revisit that investment

In my travels on the Big Banter a number of other communities have indicated a strong interest in this approach.

6. Children with disability

I have also been working with Commissioner Graeme Innes – the Disability Discrimination Commissioner – to help address the access to justice issues faced by children and young people with disabilities who need support with communication. This includes children who are in contact with the juvenile justice system, as offenders, as victims and as witnesses.

The project aims to increase awareness and understanding of the rights of people and children with disabilities; identify gaps and barriers in access to justice in the criminal justice system for people with disability, and identify best practices and solutions to overcoming these barriers.

Often people with disability do not receive the support, adjustments or aids that they need to begin or defend criminal matters, or to participate in criminal justice processes. Further, they are often indefinitely detained in prisons or psychiatric facilities without being convicted of a crime, may not receive the supports they need in prison, and face harmful prison management practices.

Children and young people with a disability, especially those with cognitive impairment, or psycho-social disability are especially vulnerable within the justice system. In visiting young people in detention, it is clear to me that many disabilities are not being picked up or are masked by other issues.

Although there are limited prevalence studies, a recent piece of research estimates that of the 10,000 people in NSW prisons, 8% had an intellectual disability (below 70IQ), while 77% were estimated to have a mental health condition.¹²

According to the study, young people with mental health disorders and/or cognitive impairment are at least six times more likely to be in prison than young people without a disability in the general NSW population.

However, there is evidence that there are successful programs that work, and that these may even reduce the costs to government. The same recent study calculated the cost of individual pathways through the criminal justice system, showing that a number of successful programs that focus on investment and diversion of people with mental health disorders and cognitive impairment could decrease costs significantly.

7. Children who have been maltreated

Finally, I want to speak about another group of especially vulnerable children in contact with the justice system, those who have themselves been subjected to abuse and neglect.

There is strong evidence that children who have suffered abuse or neglect are more likely to engage in criminal activity than those who have not. 

According to a survey of young people in juvenile justice detention in NSW in 2009, 81% of young women and 57% of young men had been abused or neglected and for 49% of the young women and 19% of the young men that abuse or neglect was severe.¹³

Significant numbers of the youngest children in the justice system are also child protection clients. According to a Victorian study as many as 78% of children who experienced remand at 10-12 years of age, or were 10-12 years old when they received a youth justice order in 2012, had child protection involvement.¹⁴

A consistent finding of research has been that young people whose maltreatment persists from early childhood into adolescence or that starts in adolescence are much more likely to be involved in crime and the juvenile justice system than those whose maltreatment is limited to childhood.

In this context, it is also important to continue to intervene to stop and prevent maltreatment at later stages when children are particularly vulnerable to getting into trouble, especially at times of transition, such as from primary to high school, or movement in and out of care.

To quote Judy Cashmore from a paper she wrote in 2011 (you will be hearing from Judy at this symposium),  

the window for effective intervention, especially in relation to offending behaviours, is not closed after early childhood, though it is more likely to be more expensive to intervene at later stages.¹⁵

8. Children’s rights to special protection

A focus on intervention, prevention and addressing welfare needs is also consistent with protecting child rights.

Children in contact with the criminal justice system have the same rights as all children in Australia, as set out in the Convention on the Rights of the Child. They are also considered to be a group requiring special protection.

The Convention emphasises that measures to address their offending behaviour should aim to rehabilitate and reintegrate the child, and take into account their age and sets out the responsibilities of States Parties under article 40:

recognise the right of every child alleged as, accused of, or recognised as having infringed penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society (article 40(1)).

As for detention, article 37 of the Convention requires States parties such as Australia to ensure that detention of children is only a measure of last resort, and for the shortest appropriate period of time. This recognises that general detention can have highly detrimental impacts on children, dislocating children from family and community life, impeding personal development and entrenching criminal identities, behaviours and associations.

If a child is deprived of their liberty, article 37 stipulates that they should not be detained with adults, and they should be treated with humanity and respect for the inherent dignity of the human person in a manner which takes into account the needs of a person his or her age.

During 2011-2012, the UN Committee on the Rights of the Child considered Australia’s progress under the Convention, and issued its report card, called Concluding Observations. It found that despite its previous recommendations, Australia’s juvenile justice system still needs substantial reforms to conform to international standards.¹⁶

In terms of the administration of juvenile justice, the Committee made particular recommendations, as follows:

UN Committee’s Concluding Observations on juvenile justice:

• consider raising the minimum age of criminal responsibility to an internationally acceptable level

• deal with children with mental illness and/or intellectual deficiencies in conflict with the law without resorting to judicial proceedings

• take measures with a view to stopping mandatory sentencing in WA and Victoria

• remove children who are 17 years from the adult justice system in Queensland

• allocate necessary resources to ensure that all child offenders are held in separate correctional centres

• establish an accessible and effective mechanism for investigating cases of abuse at youth detention centres.

It also made a wide range of recommendations about laws and policies which affect vulnerable children, to ensure that they receive special protection of their rights, including children in out of home care, Aboriginal and Torres Strait Islander children, children with disabilities and children of incarcerated parents, among others.

There is no doubt that implementing these recommendations would go some way towards making juvenile justice systems conform with child rights. I, and others, have raised some of them with government. For example, the issue of 17 year olds held in adult facilities in some jurisdictions.

However, it is the strong emphasis on rehabilitation, reintegration and diversion from detention in the Convention, and in the work of the UN Committee, that gives us the greatest guidance on how we can best protect the rights of vulnerable children.

These children are often in trouble because our society has failed them. Most do not belong in the more punitive forms of our justice systems. And we have to work even harder to find effective and child-focused ways to build their agency, capabilities and pro-social identities.

9. Conclusion

In closing, I would like to revisit where I began, with respect for the views of the child.

It is not just me that thinks this is important. Children from all walks of life think so, even though many of them may not always tell you so face to face.

As part of the Big Banter, some young people bravely agreed to be Roving Reporters on my visit to each state and territory.

Christine, the roving reporter from Darwin, had this to say

I think it’s important that everyone goes to school, gets an education and understands the importance of positive participation in the community. But I know that this doesn’t always happen. Even in a country like Australia, where there are so many opportunities.

One of the reasons for this, I believe, comes down to something very simple. Young people don’t always feel that they are being listened to by adults. Sometimes, we just aren’t taken seriously - it seems like what we think doesn’t matter. I believe some adults don’t understand us, or know what’s best.

There is no doubt that the basic human right to have a voice and be heard belongs to all children. I believe that upholding this right is the key to effective engagement, rehabilitation and reintegration of our most vulnerable and troubled children.