Impact of trauma and placement in residential or congregate care on the criminalisation of children in England/Wales and Australia

Children in residential or congregate care settings are over-represented in youth justice statistics in England, Wales and Australia. Consistent with international evidence, children in residential care have the most complex needs of all young people growing up in Out-of-Home care (OOHC), due to complex trauma from pre-care experiences of abuse and neglect, inadequate therapeutic supports while in care and significant placement instability. Some argue residential care settings are intrinsically criminogenic, through exposure to antisocial peers and criminal behaviour. While the care-criminalisation phenomenon is well-established, little is known about the way children’s experiences of trauma, including removal from family and placement in OOHC, are viewed by lawyers and decision-makers in criminal cases involving children and young people. Decisions in the criminal justice system on dealing with children and young people can have long-term ramifications for children in care. Custodial sentencing of a young person especially, can often prove a precursor to ongoing incarceration, with all the developmental and systemic disruption this brings. Too frequently, this endures throughout adulthood. That can create obstacles to the actualization of individual potential and undermine establishment of strong family and community relationships. This paper presents findings from a qualitative, cross-national study involving in-depth interviews with 28 legal, youth justice and judicial stakeholders in England and Wales, and in New South Wales and Victoria (Australia). Data were deductively analysed to draw out key comparisons in the way children’s history of trauma and OOHC placement are factored into decision-making by the courts. Despite considerable socio-legal differences between the child protection and youth justice jurisdictions in England and Wales, and Australia, several overarching and common systemic factors influence the criminalisation of children in care. These include pervasive contextual processes of criminalisation for children in care, absence of appropriate therapeutic supports, a residential care system characterised by instability and lack of safety, the over-reliance on police to respond to minor incidents and infringements and a police response that is increasingly punitive and lacking in awareness of trauma and its impacts. These findings suggest children in residential/congregate care in each jurisdiction are subjected to a range of processes that effectively function to criminalise trauma. We conclude with a discussion of the implications of these systemic factors when children come before the courts for sentencing.