Disadvantages of adverse outcomes

Introduction

4.32 Issues surrounding children’s abilities to participate in legal processes affect all children because almost all children have some involvement with legal processes in the formal education system and in transactions as consumers of goods and services. However, participation is a particular issue for children who have extensive contact with legal and administrative systems, who depend on those systems to protect and provide for them and who may be without assistance in dealing with these legal processes. This group of children may include those who are involved in care and protection systems, excluded from school, in receipt of income support or housing assistance or in the juvenile justice system.

4.33 Children in this group are extremely vulnerable in dealing with legal processes. For many, this contact may be related to disadvantages they already face due to family breakdown, socio-economic and educational disadvantages, systems abuse and disabilities. Their involvement in these processes may be extensive and they may not always have the support of their families. These factors may add to their disadvantage.

4.34 Contact with legal processes may affect these children’s lives in many ways. For many of these children the contact produces a satisfactory result. For example, a child may receive income support that allows him or her to complete school or a child may enter foster care and receive the support his or her parents were not able to provide.

4.35 However, legal processes are interlinked in complex and sometimes little understood ways. Should one legal process fail to address the underlying problems, contact with that process may increase the risk for some children that they will have further, and increasingly adverse, contact with other parts of the legal system. For example, damaging consequences are apparent in the links between the education, income or social support and care and protection systems.[64] Children in detention centres often represent the failures of these systems to meet the needs of the children involved.

Education

4.36 There is considerable evidence that early school-leaving (leaving school before reaching the compulsory attendance age) is strongly correlated with unemployment, poverty and homelessness.[65] Children who are suspended or excluded from school or whose intellectual and emotional needs are not identified and adequately addressed may therefore suffer further and greater disadvantage and contact with other legal processes. Those children who fail in the school system, whether from emotional, behavioral or intellectual difficulties, may be at risk of criminal offending.[66]

4.37 In one NSW study on children serving detention orders, 82.2% of the young people interviewed had already left school before being incarcerated.[67] Of those who had left school and were at least 15 years old at the time of their arrest for the offence for which they were serving the detention order, 33.3% had left school before they had turned 15.[68] Over half of the respondents stated that they had truanted from school on average at least one week out of every school month, 79.3% said that they had been suspended or excluded from school at least once in their lives and 30.1% said that they had been suspended or excluded from school at least 5 times.[69] The South Australian Department of Family and Community Services has also found that young people entering its juvenile justice system tend to have poor literacy and numeracy: 25% have a reading age of less than 10 years old and 50% do not have survival level numeracy skills.[70]

4.38 These links between education and delinquency may reflect the correlations between inadequate education, unemployment and crime. The unskilled, under-educated and unemployed are grossly over-represented in criminal statistics.[71] For children who have been excluded from school, the links may also be a result of the alienation, low self-esteem and rejection that is often felt by these children.[72]

Income and social support

4.39 Contact with income and social support systems may be correlated with children’s involvement in care and protection and juvenile justice systems. One case study reported to the Inquiry illustrates these links.

Eric was homeless as his step-father had told him to leave home. In order to get money for food and shelter Eric agreed to sell a bike which he had a fair idea was stolen. He was to split the proceeds [of] $40.00 with a friend…Eric was arrested and held in custody for three days until his case could be heard…Eric already had a ‘failure to appear’ on his record. In explaining why he didn’t appear he said that when you are homeless, its wet, you tend to lose things like little bits of paper and you lose track of what day it is, and so he didn’t appear.[73]

4.40 Low socio-economic status may increase the risk of children becoming involved in the juvenile justice system. For example, one NSW study on juvenile theft offenders in detention found that the most common reasons for offending given by shoplifting offenders were to obtain clothes or money for clothes (20.6%) or food or money for food (17.6%).[74] The most common reason for offending given by break and enter offenders was to obtain money (31.4%).[75] Participation in juvenile crime has also been linked to unemployment and homelessness.[76] In a study of 400 young people aged 14 to 17 in Melbourne, more than 30% thought that young people in their age group committed crimes to supplement their incomes or for survival purposes.[77] However, low socio-economic status is not always or a sole predictor of juvenile crime. Other developmental, familial, peer and school-related factors are also predictors.[78]

4.41 Economic disadvantage also correlates to involvement in care and protection systems, although child neglect and abuse is also related to a number of interlinked factors.[79] Poverty may contribute to family instability or stress which in turn leads to an increased risk of child neglect.[80] This link between poverty and child abuse does not mean that poverty itself leads to abuse or neglect. Poverty may be a factor which increases family stresses and affects parents’ emotional well-being. This stress, coupled with lack of community resources, may tend to increase the vulnerability of children in low income families to abuse or neglect.[81] Lack of social support for families also increases the risk of involvement in care and protection systems. One study has found that poor child care facilities, a high turnover of residents and weak neighbour ties provide conditions which increase the risk of neglect.[82]

Care and protection

4.42 Another case study illustrates that there may be a link between care and protection and juvenile justice systems.

Robert is 14 years old. His parents are from a non-English speaking background and have separated. He has been in care since the age of six, consisting of foster care, an adoptive placement and five Department of Community Services Residential Care placements. Robert has been diagnosed as having a conduct disorder and several assessments suggest that he is ‘functioning at a mild level of intellectual disability.’ Robert has been subject to criminal charges on numerous occasions, including assault, malicious damage and break, enter and steal. Some of these resulted from departmental staff pressing charges for incidents within the DOCS residential care settings. Some of the charges were later dismissed by the Children’s Court under the NSW Mental Health (Criminal Procedures) Act 1990. The Magistrate acknowledged that Robert’s conduct disorder, borderline developmental disability and disrupted history played a major part in his behaviour.[83]

4.43 Children who have been extensively involved in the care and protection system are drifting into the juvenile justice system at alarming rates. A NSW study revealed that wards of the state were 15 times more likely to enter a juvenile justice detention centre than the rest of the juvenile population.[84] In Victoria, 21% of the children in care over 10 years of age at April 1995 had been formally processed as offenders during the period from May 1993 to May 1995 — a rate substantially higher than that for adolescents in the general community.[85]

4.44 Statistics are unavailable from other jurisdictions. However, evidence to the Inquiry, particularly from young people, indicates that the situation is no better elsewhere. The Inquiry’s survey of young people revealed that 41% of the 113 respondents in detention facilities who answered the question about involvement in care and protection systems had been involved in welfare proceedings.[86]

4.45 The link between the need for care and protection and criminal behaviour might be partly the result of family background and influences, particularly those factors associated with parenting behaviour and style.[87] When a caretaker is neglectful of a child, neglect being defined as some failure on the part of the caretaker to provide conditions essential for the child’s healthy development, there is more chance that the child will be involved in some kind of delinquent behaviour, from self reported moderate delinquency to assault and homicide.[88]

4.46 However, the care and protection system itself often fails to provide an environment conducive to a child’s healthy development, compounding the problem and the risk for many children.[89] The drift of children from care and protection systems into the juvenile justice system may therefore be the result of a failure by the family services department to provide an appropriate caretaker or of systems abuse.[90] Certainly, the number of children who become homeless while under care and protection orders indicates that care and protection systems are not adequately caring for many children. A report on SAAP revealed that 18.7% of SAAP clients under the age of 14 were under care and protection orders before they obtained SAAP assistance, as were 17.1% of 14 to 15 year old clients and 8.1% of those aged 16 to 17.[91] In Victoria, 23% of children given emergency accommodation by one agency during April 1995 were identified as children currently in care.[92]

4.47 The care and protection system also often fails to deal adequately with the education of the children in its care, bringing into play the links between education and juvenile justice. One NSW study showed that 23.4% of the former state wards who were interviewed had left school before they completed Year 10 and 35.6% had completed Year 12 prior to leaving wardship. By comparison, only 5% of young people who lived at home and were interviewed for the study had left school before Year 10 and 80% completed Year 12.[93] Another NSW study found that more than half of former wards had completed only Year 10 or less of schooling, that almost half were unemployed 12 months after being discharged from wardship and that almost half said that they were having difficulties ‘making ends meet’.[94]

4.48 Instability caused by changes in placement is another influential factor for children in care. The NSW study on former wards noted that the average number of placements for a child in care was 8.4, the median being 6.5. Of these former wards, 76.9% had three or more placements while in care, 28.6% had at least ten placements and one young person had 32 placements.[95] However, those children who had spent at least 75% of their time in care in one long-term placement had attended fewer schools, were happier, were more likely to have completed at least Year 10 at school, more likely to report that they were able to ‘make ends meet’, less likely to say they missed out on affection and less likely to have thought about or have attempted suicide.[96]

4.49 Children leaving care often do not receive the support they require. As has been noted by other reports, leaving care is ‘…a crisis which brings to the surface past deficits in care and attainment; it often requires, but does not receive, a major input of services and support’.[97] There is a history within all care and protection jurisdictions of limited provision for the transition of young people into independent living.[98] Young people leaving care often experience inadequate housing, unemployment, loneliness, depression and poverty.[99] Both the HREOC and the parliamentary committee reports on homelessness note the over-representation of former wards among the homeless and the inadequacy of the assistance these young people receive after they leave care.[100] These figures support other international studies on young people leaving care that show about one third of young people leaving care become homeless at some point.[101] As shown in paragraph 4.40, lack of income and social support may be related to involvement in juvenile justice systems.

4.50 The link between care and protection and juvenile justice systems may also be more direct. Children in care are often charged and taken into police custody when those responsible for their care and protection believe that being in a more restrictive juvenile justice facility is in a particular child’s ‘best interests’.[102] Child welfare workers routinely use the juvenile justice system as a treatment, punishment and holding mechanism for children whom they find difficult to manage.[103]

[64] Links between education, socio-economic factors and crime do not necessarily imply a causal relationship between these factors. Care must be taken in interpreting these links.

[65] NYARS Under-Age School Leaving National Clearinghouse for Youth Studies Hobart 1997, 29.

[66] ibid.

[67] P Salmelainen The Correlates of Juvenile Offending Frequency: A Study of Juvenile Theft Offenders in Detention NSW Bureau of Crime Statistics and Research Sydney 1995, 13.

[68] ibid.

[69] ibid.

[70] SA Dept of Family and Community Services IP Submission 110.

[71] NYARS Under-Age School Leaving National Clearinghouse for Youth Studies Hobart 1997, 29.

[72] See R Ludbrook ‘Children’s rights in school education’ in K Funder (ed) Citizen Child: Australian Law and Children’s Rights AIFS Melbourne 1996, 109.

[73] Federation of Community Legal Centres (Vic) IP Submission 129.

[74] P Salmelainen The Correlates of Juvenile Offending Frequency: A Study of Juvenile Theft Offenders in Detention NSW Bureau of Crime Statistics and Research Sydney 1995, 21.

[75] id 25.

[76] K Freeman ‘Young people and crime’ (1996) (32) Crime and Justice Bulletin 5.

[77] R White et al Any Which Way You Can: Youth Livelihoods, Community Resources and Crime Australian Youth Foundation Sydney 1997, 58.

[78] K Freeman ‘Young people and crime’ (1996) (32) Crime and Justice Bulletin 5.

[79] Children from economically disadvantaged families come to the notice of the care and protection system at a greater than average rate: see M James ‘Child Abuse and neglect: Incidence and prevention’ Issues in Child Abuse Prevention No 1 National Child Protection Clearing House Canberra 1994. See also P Salmelainen ‘Child neglect: Its causes and its role in delinquency’ (1996) (33) Crime and Justice Bulletin.

[80] For a review of the literature on this subject see P Salmelainen ‘Child neglect: Its causes and its role in delinquency’ (1996) (33) Crime and Justice Bulletin 4–8.

[81] id 5.

[82] id 12.

[83] NSW Community Services Commission The Drift of Children in Care into the Juvenile Justice System: Turning Victims into Criminals NSW Community Services Commission Sydney 1996, 13.

[84] id 8.

[85] Vic Auditor General’s Office Protecting Victoria’s Children: The Role of the Department of Human Services Vic Government Printer Melbourne 1996, 266. See paras 2.75-121 for the incidence of contact between the youth population in general and the juvenile justice system.

[86] Survey Question 6.9. There were 208 respondents in detention. The 46 positive responses to this question made up 22% of all respondents in detention.

[87] For a review of the literature on this subject see P Salmelainen’Child neglect: Its causes and its role in delinquency ‘ (1996) (33) Crime and Justice Bulletin 3–4.

[88] ibid.

[89] See paras 17.5-14.

[90] See paras 17.5-14 in relation to systems abuse and other forms of neglect while in care.

[91] AIHW SAAP National Data Collection: Mid-year Report July-December 1996 AIHW Canberra 1997, 90, table 129.

[92] Vic Auditor General’s Office Protecting Victoria’s Children: The Role of the Department of Human Services Vic Government Printer Melbourne 1996, 263.

[93] J Cashmore & M Paxman Wards Leaving Care: A Longitudinal Study Social Policy Research Centre Sydney 1996, 150. See also paras 2.32-38 for national statistics on school retention rates for the general youth population.

[94] J Cashmore & M Paxman Wards Leaving Care: A Longitudinal Study Social Policy Research Centre Sydney 1996, iii. This paper also noted a similar UK study which showed that children in care were more likely to be unemployed, to lack educational qualifications, to be living in poverty, to change accommodation frequently and to be confused about their pasts and unsettled in their present relationships.

[95] id 27.

[96] id ii.

[97] id 3.

[98] SA Dept of Family and Community Services IP Submission 110.

[99] S Wilson et al Breaking the Cycle: Taking Responsibility for Independence Children Australia Melbourne 1994, 25.

[100] HREOC Our Homeless Children: Report of the National Inquiry into Homeless Children AGPS Canberra 1989; House of Representatives Standing Committee on Community Affairs Report on Aspects of Youth Homelessness AGPS Canberra 1995.

[101] RP Barth ‘On their own: The experiences of youth after foster care’ (1990) 7 Child and Adolescent Social Work Journal 419.

[102] NSW Community Services Commission The Drift of Children in Care into the Juvenile Justice System: Turning Victims into Criminals NSW Community Services Commission Sydney 1996, 16–17.

[103] ibid.