‘What drove sisters of 12 & 13 to kidnap a child to abuse? Disturbing case of the girls who tried to take a child from Primark’ (Daily Mail 4th August 2016)
This headline neatly sums up the dilemma faced by policy makers, criminologists and the public when faced with a child who commits a criminal offence.
Should you focus on what ‘drove’ them by addressing the personal circumstances that led them into this behaviour or should you focus purely on the crime of kidnap and punish them accordingly?
The balance between welfare and justice approaches
This tension between ‘welfare’ approaches (they’re children with problems that need addressing) and ‘justice’ approaches (they’re criminals with an offence that needs punishing) has played out in periodic changes to youth justice policy over many decades, the latest of which is starting to emerge.
In summary, the ‘welfare’ approach looks at the whole of a young person’s circumstances, with the sentence they receive being as much influenced by their level of need as the offence they committed. The sentence will give a youth justice worker a mandate and time to work on those issues.
One consequence of this approach is that young people may receive different sentences for the same offence depending on their background. Someone with greater needs will need more time from a youth justice practitioner to help address them.
This is the objection of the ‘justice’ approach which says it’s unfair to treat young people differently depending on their backgrounds. If they committed the same offence, then the only thing that matters is what they did and that they should each receive a fixed sentence proportional to that crime rather than of different lengths reflecting their personal circumstances.
Decriminalisation, the 1998 Act and an approach based on risk
A more radical response to this sentencing dilemma is to decriminalise the behaviour of children altogether. Youth justice work in the 1980s aimed to do this by increasing the use of cautions, and offering community based programmes as an alternative to custody. This was based on increasing concern that drawing young people into a formal youth justice process was actually leading to poorer outcomes. (It was working as a volunteer for Rochdale’s youth justice (IT) team during this period that inspired me into a social work career with children and young people).
Up until 1998, a child under 14 in England & Wales could only be convicted of a crime if the prosecution could prove that they knew what they were doing was wrong. This principle (doli incapax) was abolished by the Crime and Disorder Act 1998 in the aftermath of the conviction of two 11 year old boys for the murder of the toddler James Bulger. The age of criminal responsibility in England and Wales is now 10.
The 1998 Act also led, via the creation of Youth Offending Teams (YOTs) in England and Wales, to a new approach based on risk. In this model, the sentence is determined in part by the risk of what a young person might do in the future. Some of the risk factors taken into account include the community they’re living in, and the quality of the parenting they’re receiving. So ‘welfare’ issues are taken into account, but only in so far as they might increase the chances of a young person offending again.
One criticism of this approach is that it reintroduces the ‘welfare’ model effect of different sentences for the same crime but without requiring that the welfare issues that are raised in the risk assessment are actually addressed.
AssetPlus and ‘future-risk’ based sentencing
The new AssetPlus assessment, recently introduced by the Youth Justice Board (YJB), is designed to deal with this criticism by retaining some element of ‘future-risk’ based sentencing, whilst ensuring that any welfare needs emerging in the assessment are given equal importance to the reduction of offending. Welfare needs are assessed in a more comprehensive way, for example by incorporating the findings of research into brain injury, and speech and language development.
In parallel with this shift in assessment and sentence planning, there is also a resurgence in the move to decriminalise the behaviour of young people and divert them from the criminal justice system altogether - summed up by the argument that we should treat young people who offend as ‘children first, offenders second’. This is driven by further research that suggests even well-meaning, welfare-driven interventions can paradoxically pull young people further into the youth justice system. It also looks at the strong links between education outcomes and offending, particularly the impact of school exclusion.
The Charlie Taylor Review
The education of young people who offend is also a key theme of the Taylor Review of the Youth Justice System, commissioned by Michael Gove when he was Justice Secretary. In his interim review of February 2016, Charlie Taylor (who himself has a background in teaching children with severe behavioural problems) reflected on the poor provision of education in the current secure estate compared to that offered in the best special schools and pupil referral units. Although his final report has been delayed, he has suggested that we move to a system of secure schools where the emphasis is on education with added security rather than security with added education.
In terms of the work of YOTs in the community, and specifically their need to work with increasingly challenging young people, he spoke in terms that are more in line with the ‘Children First, Offenders Second’ philosophy described above, saying: “What struck me very early on was actually the sorts of interventions that are simply criminal justice-focused interventions will not work for these children”. He specifically highlighted teams that were working more closely with social care agencies.
What it means for youth justice teams
The changes in the youth justice landscape that have been summarised above, in the draft Taylor Review, and are clearly evident in AssetPlus, suggest that youth justice teams will be working with a smaller number of more complex cases in the future. In order to produce more detailed assessments and plans, these teams will need to work more closely with social care, and schools both in terms of data sharing and trying to address needs and risks outside of the formal youth justice process where at all possible.
This shift in working practices for youth justice teams entails not just a cultural change, but a technological one, to ensure that collaborative working is both achievable and feasible.
To discover how this can be rolled out in practice and in a way which enables youth justice teams to better support the young people they’re working with, take a look at Emma Wrigley’s blog Realising the youth justice cultural shift: what this means for local authorities.
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