From home to prison: how to prevent the criminalisation of children in care

Fewer than 1% of all children in England are in care. Yet they make up nearly 40% of children in secure training centres and young offender institutions.

Children aged 16 and 17 living in children’s homes are 15 times more likely to be criminalised than other children of the same age.

It is a chilling statistic that says that the state is much more likely to take the liberty away from children that it has raised itself.

There are a number of likely reasons for more volatile and destructive behaviour amongst children in care and these have been examined in detail elsewhere. Many of these children have had their trust of those in authority seriously undermined, they have had a lack of stable relationships to help negotiate challenges and a lack of holistic support in dealing with past trauma.

However, recent findings have also found that even where a child in a children’s homes engages in the same activity as someone raised by their parent(s), they are still much more likely to be criminalised as a result.

An assault with a pillow where no injuries were sustained. A child throwing coffee granules. Within an ordinary family home, these are clearly incidents that would be dealt with by parental discipline. However, these are real life examples where the police have been called and, instead of remaining a family issue, it became a criminal justice issue simply because the child in question was in care.

The sentencing council have summarised the problem as follows:

“In some instances a looked after child… may be before the court for a low level offence that the police would not have been involved in, if it had occurred in an ordinary family setting”

To even come close to adequately addressing the whole scandal of criminalisation of children in care, a complex interplay of issues would need to be tackled, at a policy level and at a practice level.

Until that happens, criminal solicitors have an important role to play in reducing the number of children being criminalised in these circumstances. Where a child is in care, it is vitally important that solicitors make representations to the police and the CPS as to why it would neither be in the public interest, nor would it promote the child’s welfare to prosecute.

What can be done at the point of arrest?

There are a number of useful sources of guidance and law that a solicitor can rely on. The starting point should be the primacy of children’s welfare. Section 17-25 of The Children Act 1989 sets out that the duty on local authorities to safeguard and promote the welfare of children in need.

There is also specific guidance from the CPS on offending within children’s homes. Most CPS lawyers will not be aware of this until it is raised by a defence solicitor. This guidance states that ‘the police are more likely to be called to a children’s home than a domestic setting to deal with an incident of offending behaviour by an adolescent. Specialists should bear this in mind when dealing with incidents that take place in a children’s home. A criminal justice disposal… should not be regarded as an automatic response to offending behaviour by a looked after child, irrespective of their criminal history.’

In other words, even where a young person has technically committed an offence, prosecution for that offence should not necessarily follow.

Furthermore, the guidance also points out that all children’s homes must have a behaviour management policy. The police should have obtained a copy of this policy and a statement as to how the policy has been applied. The homes should have procedures and guidance on police involvement in the home and it should be clear when the police should be called in. A solicitor can ask for this at the point of disclosure to ensure that the police involvement is in line with this guidance.

What can be done at the point of charge?

The decision to prosecute a looked after child should be approached differently to any other child. The CPS are not always aware of this and it is important for a criminal defence solicitor to remind them of the questions that a decision maker should be asking themselves and the children home:

1. What is the disciplinary policy of the children home?
2. Why have the police become involved and is it as agreed in the policy?
3. Has any informal / disciplinary action already been taken?
4. Has there been an apology or reparation?
5. What are the victim’s views?
6. What are the key worker’s or social worker’s views?
7. What explanation or information about the offence was given by the looked after child?
8. What is the care plan for the looked after child?
9. What is said of the recent behaviour of the looked after child?
10. Are there any aggravating or mitigating features?

If the prosecutor fails to consider all these factors, proceedings for judicial review could be issued.

If you know someone who is in a children’s home and has become involved with the police, it is vitally important that they are represented by a solicitor as soon as possible to ensure that their specific situation is accounted for and they are not given a conviction which could have otherwise been avoided.

We have a specialist youth team at Hodge Jones & Allen. Please call 0808 271 9413 for more details.