Sentencing care-experienced young people: Impact of trauma and placement in residential/congregate care on sentencing determinations before Children’s Courts in England/Wales and Australia.

The ‘care-criminalisation’ phenomenon has been well established in Australia, the UK and internationally (Baidawi & Sheehan, 2019; McGrath et al., 2020) highlighting the heightened risk of criminalisation for young people in the Out-of-Home Care (OOHC) system (McFarlane, 2018). Young people in residential care settings are at a particularly heightened risk of criminalisation both as juveniles and adults (Baidawi & Ball, 2022).

In Australia, residential care accounts for only 7% of the total OOHC population (Australian Institute of Health and Welfare (AIHW, 2022a), yet is reserved for children and young people who have experienced the most significant trauma – both before entering the care system and during their time in care (Ainsworth, 2017). The residential care system in Australia has been repeatedly criticised as being ‘criminogenic’, evidenced by the considerable number of ‘crossover’ children with involvement in both the child protection and the criminal justice systems (Baidawi & Sheehan, 2019; McFarlane, 2018). In England and Wales, there are slight differences with residential care placements for children consisting of children’s homes, residential schools, secure units and unregulated homes and hostels. In 2016, residential care accounted for 12% of all care placements in England, with 5,290 (64%) lived-in children’s homes, 180 lived-in secure units, 1100 lived-in hostels (generally as part of the process of leaving care), 1080 lived-in other residential settings (including care by the NHS, mother and baby units and custody) and 670 lived-in residential schools. Like Australia, children in residential care in England and Wales are significantly over-represented in the youth justice system (McGrath et al., 2020).

Children in the OOHC system are characterised by exposure to chronic and cumulative trauma, often beginning in early childhood (Greeson et al., 2011). Research has conclusively established that young people in residential/congregate care settings exhibit the highest and most severe levels of developmental trauma across multiple psychosocial domains. These young people are more likely to have significant mental health needs, histories of interpersonal aggression and violence, and substance abuse challenges (Águila-Otero et al., 2020; Hallam et al., 2020; Havlicek & Courtney, 2015). There is emerging evidence that young people in residential/congregate care are also more likely to have diagnosed intellectual disabilities, cognitive impairments and developmental disorders (Baidawi & Piquero, 2020; McCausland & Dowse, 2022).

Early exposure to interpersonal trauma that is sustained and/or that occurs across multiple domains has been shown to adversely affect brain development, resulting in difficulties with executive functioning (decision-making, impulsivity) and emotion regulation (see for example Anda at al., 2006; Hambrick et al., 2019). Research by Paterson-Young (2021) found that children in secure care in England and Wales experience trauma in secure care settings that mirror experiences of trauma in the family home. If unaddressed, the sequelae of developmental trauma can lead to increasingly complex and challenging emotional and behavioural difficulties. This in-turn increases the risk that children and young people will engage in behaviours that draw the attention of the criminal justice system (Bollinger et al., 2017). Failure to tailor support for children and young people in residential care has an impact on future behaviour, with children and young people entering a cycle (Paterson-Young et al., 2019).

In the Australian context, the criminalisation of children in residential care is further complicated by the on-going over-representation of Aboriginal and Torres Strait Islander children in statutory systems (SNAICC, 2021). While only accounting for approximately 6% of the total child population, Aboriginal and Torres Strait Islander children comprise almost 50% of the juvenile justice population (AIHW, 2022b). Aboriginal and Torres Strait Islander children are 16 times more likely to be placed under the supervision of the youth justice system, and 18 times more likely to be in detention compared to non-Indigenous Australian children (AIHW, 2022b). A similar pattern of over-representation is evident in the child protection system, where Aboriginal and Torres Strait Islander children are 10 times more likely to be placed in OOHC than non-Indigenous children (SNAICC, 2021). ‘Indigeneity’ has been shown to be among the strongest predictors of contact with child protection and criminal justice systems, even after controlling for traditional traumagenic and criminogenic risk factors (see for example: Davis, 2019 and Dowell et al., 2017).

Among Aboriginal and Torres Strait Islander communities intergenerational trauma is also linked to colonisation, dispossession, and forced assimilation through state and territory policies that promote the removal of First Nations children from their families, communities and Country (Davis, 2019). This means that First Nations children in care and in juvenile justice settings experience complex trauma, as contact with these formal systems is seen as evidence of deeply entrenched, systemic racism geared towards the cultural genocide of First Nations people in Australia (Davis, 2019; Funston & Herring, 2016; Radke & Douglas, 2020; Turnbull-Roberts et al., 2022). This mirrors problems in England and Wales, with minority groups over-represented in the youth justice system, where 40% of children in custody are from Black and Ethnic Minority (BAME) backgrounds, many of whom have been in care (38% in Young Offender Institutes, 52% in Secure Training Centres) (Taylor, 2016).

The ‘OOHC to juvenile justice pipeline’ has been well-established in Australia and elsewhere (see for example Baidawi, 2020; Dvorchak, 2022; Malvaso et al., 2016). More recently, research has begun to establish the prevalence, characteristics, trajectories and needs of dual system involved youth (Baidawi & Sheehan, 2019; McFarlane, 2018). Despite this, research on the way that developmental trauma and placement in residential care affects judicial decision-making, particularly sentencing dispositions is lacking. For example, researchers have explored the role of trauma as a mitigating factor in sentencing for violent crimes both among juveniles and adult offenders (Forsyth, 2016; Jackson et al., 2021; Stevenson, 2009). Trauma-informed models of justice, particularly juvenile justice have also been promoted (Buckingham, 2016; Crosby, 2016; Ezell et al., 2018), indicating that while there is an acknowledgement and appetite within the judiciary for more responsive and less punitive approaches to young people, the application of trauma-informed approaches is inconsistent at best (Zelechoski et al., 2021). However, very few studies have investigated the intersection between developmental trauma, experiences of residential/congregate care and sentencing dispositions. The proposed project sets out to address this gap.

The purpose of this study was to:
1) Investigate how a young person’s history of trauma and experience of OOHC, particularly residential/congregate care, is factored into sentencing decisions.
2) Compare the way that trauma and experiences of OOHC are factored into sentencing decisions in the UK and Australia.
3) Undertake a preliminary examination of how First Nations and BAME children’s experiences of cultural and systemic trauma are reflected in sentencing rulings

The purpose of this study was to:
1)Investigate how a young person’s history of trauma and experience of OOHC, particularly residential/congregate care, is factored into sentencing decisions.
2)Compare the way that trauma and experiences of OOHC are factored into sentencing decisions in the UK and Australia.
3)Undertake a preliminary examination of how First Nations and BAME children’s experiences of cultural and systemic trauma are reflected in sentencing rulings