Reducing criminalisation of Care Leavers

March 12, 2024

Image by Tumisu from Pixabay

Kerrie Portman calls for proper justice for traumatised young people

What is the purpose of law? This is a big question and perhaps one better asked of a legal philosopher than me, but as I look at the criminal justice system I constantly ask myself ‘what is the point?,’ ‘what are you trying to achieve?’ and ‘why does nobody else seem to be asking this?

I would define part of the law’s purpose as stopping unwanted behaviour. Within that falls the question of what is the best way of achieving this. This is where my frustration with the legal system lies; the criminal justice system is not always the best way to achieve that.

I’m not arguing for its abolition, but it is overused and all too often utilised out of laziness and failure to search for an actual solution to the original unwanted behaviour. The over-criminalisation of Care-Experienced people is a prime example of this.

The bigger categories of routes for Care-Experienced people into the Criminal Justice System include:

  1. carers who choose to report behaviour that families wouldn’t deem criminal, and
  2. being exploited and groomed into gangs.

Both encompass trauma-influenced behaviour and the latter is often motivated by isolation and school exclusion.

Contact with law enforcement is often traumatic at any level; from the police to solicitors to court

The first point of call should be trying to positively address the underlying issue. Children are taken into Care for a reason that nearly always will have left that child with trauma, and many aspects of the current Care System further traumatise children and young people.

On top of that, many Looked After Children and Care Leavers have co-existing conditions such as disabilities, addiction, and mental health conditions which can include self-harm and/or suicide ideation or even suicide attempts. They may also have previous trauma surrounding the police, courts or authority figures in general.

Contact with law enforcement is often traumatic at any level; from the police to solicitors to court. It can include the loss of liberty in terms of being handcuffed, arrested and incarcerated, whilst there’s a threat of arrest for not attending police interviews or court appointments.

These appointments aren’t often sympathetic to restrictions of work, school or health needs, which can result in far-reaching and unevenly felt negative consequences. Most of these removals of liberty are before a verdict is reached, illustrating that ‘innocent until proven guilty’ doesn’t match the reality of the legal system.

A conviction can also affect relationships, self-confidence, sense of self and hope for the future

The removal of liberty doesn’t seem to be fully considered by the police or courts before making these interventions. It needs to be treated as a traumatic event and only as a last resort.

The Sentencing Council guidelines include many mitigations including family history, medical conditions, learning disabilities, age and maturity, which can reduce the sentence. Their website makes note to enquire on the effect of a sentence to the Care Leaver’s support from their Local Authority, especially as this is time limited to the age of 25, unless still in education. Points 1.16 and 1.17 on the Sentencing Children and Young People makes addition reference to Looked-After Children and Care Leavers. This is definitely needed.

However, the conversation of mitigating factors only happens after a guilty plea, or guilty verdict and is not taken into account when deciding if someone is guilty. This is after the often years of investigation from the police, solicitors and courts.

A conviction will negatively affect a young person’s education and career and Care-Experienced people are already disadvantaged in education and employment. A conviction makes it harder to break the Care ceiling. A conviction can also affect relationships, self-confidence, sense of self and hope for the future. Especially when considering children in young people who have often experienced significant trauma along with many other adverse life experiences, this system is too unforgiving for the idea young people make mistakes.

It is not sympathetic to the notion of growth. For example, if the actions leading to a criminal investigation were due to being groomed into a gang ­­­– when the court process takes years ­– the young person may have done the hard work of escaping that gang.

In cases of criminalised addiction, the young person may have started recovery in the years it has taken for the court to reach a decision, like with therapy for trauma-influenced behaviour.

These two issues in particular, although to an extent any criminalisation of Care Experienced people, relates to lack of access to support.

If someone is charged with a criminal offence and there are mitigating factors involved, they may be required to attend therapy or addiction support in the name of stopping re-offending.

What is the point? Every single person should be asking themselves this at every stage of a criminal investigation.

However, this support isn’t offered until after a conviction, and not during. Nearly everyone involved in a police investigation and criminal proceedings could benefit from being offered therapy during the process.

On top of this, public services are so chronically underfunded it’s likely that most Looked After Children and Care Leavers will not have had access to the support they needed in the first place, when the original events that led to criminal investigation took place.

It is not a straightforward case of people refusing support and making conscious decisions to land them in a criminal investigation. Only offering support if a criminal conviction is reached, sets a dangerous president of telling vulnerable Care Experienced people they are only worthy of support if they break the law or are an issue to others. We are worthy of support in our own right, regardless of if others view us as a problem.

And after all that, what is the point? Every single person should be asking themselves this at every stage of a criminal investigation. If the unwanted behaviour was a result of mitigating factors then that should be considered as soon as possible, not after a conviction and years of legal involvement.

In September 2023, Youth Justice Legal Centre published ‘Dare to Care: Representing Care Experienced Young People.’ It was launched in Parliament by the shadow Attorney General Emily Thornberry MP, as a practical guide for lawyers to “prevent the unnecessary criminalisation of looked-after children and care leavers”.

Kerrie is an autistic care leaver, her love of writing originating from the desire to raise awareness of discriminatory practices in social care. This led to her main writing accomplishments, including two published articles in The Guardian and co-authoring a chapter of the book: ‘COVID-19 and Co-production in Health and Social Care Research, Policy, and Practice, Volume 2: Co-production Methods and Working Together at a Distance’. As Kerrie’s love of writing grew, it expanded to most topics and she has also guest-written articles for Ambitious About Autism, National Student Pride, iReader, Heroica, Wearewriteous and North Hertfordshire Pride.

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