Doli incapax – an odd word with profound significance for South Australian children

The minimum age of criminal responsibility in South Australia is 10 years old. If you are a child under 10 years old in South Australia, you are deemed to be incapable of committing a crime – you are presumed not intellectually and morally developed enough to conceive of the difference between right and wrong.  If you are between 10 and 14 and are charged with an offence, it is up to the prosecution to prove that, at the time of the offence, you understood what you did was seriously wrong, and not just naughty.  If they can’t prove that, you are presumed to be doli incapax (from the Latin ‘incapable of evil’).

Such an obligation on the prosecution is designed to result in a graduated response across an age range where the court can take into account the considerable variation in intellectual and emotional maturity in the young people who appear before it.

Barrister Marie Shaw QC and lawyer Brittany Armstrong presented a paper on doli incapax at the Law Society in January. This was motivated by their experiences representing 10 to 14 year olds in the Youth Court and, in many cases, the protection of doli incapax was not being properly utilised. As young people in care, and particularly those in residential care, are so over-represented in our youth justice system, this particularly affects them.

In a number of cases known to advocates within the Guardian and Training Centre Visitor’s office, doli incapax was not presumed, and in at least one instance the defence was put to the task of proving doli incapax.

If this is to be a safeguard for children charged with criminal offences then it should be considered from the time of police interview, to bail applications, and if a 10 to 14 year-old comes before a court.  It is currently not. The reasons it is not are not entirely clear but could include a lack of knowledge by the child or their advocates of this presumption, the strong desire to ‘plead out’ by a child or their advocate in order to resolve the matter more quickly, or other interactions between the child protection and youth justice systems not yet understood.

By no means is this presumption of doli incapax a ‘get out of jail free card’. Each time a child or young person comes before the youth justice system, they are less likely to be presumed doli incapax.

The implications for children

Research shows that the younger a child is when they come into contact with the justice system, the more likely they are to have sustained contact.

The developmental maturity of children in this age group also means they are often insufficiently capable of engaging in youth justice processes. Children may be more likely to accept a plea offer, give false confessions or not keep up with court proceedings.

Keeping younger people out of the youth justice system would also mitigate the over representation of Aboriginal and Torres Strait islander children in youth justice.

International comparisons

Australia’s age of criminal responsibility is comparatively low compared with other countries around the world. The United Nations has proclaimed that the absolute minimum age should be 12 years old with that recommendation likely to increase to 14. The UN has called on Australia to raise the age of criminal responsibility, bringing it in line with its obligations under the Convention of the Rights of the Child.

In 1998, England and Wales abolished the principle of doli incapax. Like Australia, the age of criminal responsibility is 10 years old. In turn, any child over the age of nine can be arrested, interviewed by police, charged and then convicted of a crime and receive a criminal record. There are calls for both nations to raise the age of criminal responsibility.

In line with the Convention on the Rights of the Child, Canada raised the minimum age from 10 to 12 years, but also removed the presumption of doli incapax. This leaves children aged 12 and 13 vulnerable.

Similarly, Ireland raised the minimum aged from 10 to 12 years old, but it has also maintained the doctrine of doli incapax.

Other countries with the minimum age for criminal responsibility higher than 14 don’t recognise the presumption of doli incapax. For example, Luxembourg, Colombia, Ecuador and Uruguay has set the age of criminal responsibility at 18.

While many have argued that the age of criminal responsibility should be raised to at least 12, children aged 13 to 14 should still be protected by the principles of doli incapax.

New mural to celebrate the creativity of young people in care and detention

A dozen young people who live in residential care, their carers and artist Fran Callen got together last week in the latest stage of  a mural project to celebrate the creativity of young people in state care and in youth detention.  The completed mural will  dominate the entrance space in the new offices of the Guardian for Children and Young People.

Young people in foster care and from the Adelaide Youth Training Centre will soon be adding their paint before the final artwork takes its place on the wall.  Watch this space…

In the meantime, here is is a video featuring the residential care artists at work.

 

The Guardian’s Newsletter – February 2019

In this edition:

  • why Parliament needs to take deep breath and start again on Youth Treatment Orders
  • how we can make children feel safe and secure in residential care
  • what the children we spoke to said about their experiences in residential care

…and much more in the February 2019 edition of the Guardian’s Newsletter.


The National Redress Scheme is now in SA

National Redress Scheme - for people who have experienced institutional child sexual abuse

South Australians who experienced institutional child sexual abuse are now able to apply for therapeutic and financial support with the National Redress Scheme fully operational across the state.

People who experienced child sexual abuse in South Australian government institutions, as well as non-government that have declared their participation in the scheme, can now apply for redress.

Included in the Scheme is access to counselling and psychological support, a redress payment of up to $150,000 and the opportunity to receive a direct personal response from the institution responsible. If an offer of redress is received, any or all of these things can be accepted.

This can be a difficult process, as revisiting past events and trauma can be distressing. Support services are available through the national website, as is legal support.

The Scheme will operate for ten years and people who experienced abuse before the Scheme began on 1 July 2018 can access redress. They must also be an Australian citizen or permanent resident, who is aged 18 years or older, or will be by 30 June 2028.

South Australia is the last state to join the scheme, with concerns from the previous government that it may not harmonise with the state’s existing compensation scheme.

Under the previous ex-gratia Children in State Care Scheme in South Australia, people who experienced abuse could receive up to $50,000 in compensation. People who have already received ex-gratia payment under the state scheme may be eligible for further compensation under the National Scheme.

The National Redress Scheme was a key recommendation of the Royal Commission into Institutional Responses to Child Sexual Abuse. The Royal Commission heard from thousands of people about the abuse they experienced as children.

Only institutions that have signed up to the redress scheme are able to provide redress payments. So far in South Australia, a wide range of institutions have already signed up to the scheme. More information on the institutions that have already signed up is available on the National Redress Scheme website.

For more information or to connect with a support service visit www.nationalredress.gov.au or call the National Redress Scheme on 1800 737 377.

Interested parties can download a fact sheet that also provides more information about accessing the Scheme in South Australia.

The Guardian’s Office has moved

picture of boxes with Oog

The Guardian’s Office relocated to Level 3, 111 Gawler Place on Tuesday February 5, 2019.

Phone numbers and email addresses have not changed.

All of the Office’s advocacy services for children and young people in state care and youth detention and all of the related programs are operating from the new premises.

We are ensuring that no child or young person is disadvantaged during the transition and working to minimise any inconvenience for our colleagues and contacts.

The resources ordering service has resumed after the move.

New resources help children and young people in residential care have a say

graphic from one of the having a say posters

New resources, available today, will give children and young people in residential care information about their right to make a complaint and be heard.

Developed by CREATE Foundation, in conjunction with Office of the Guardian, the resources provide information and tools to assist them raise issues that concern them.

Central to the new feedback process is the the Post Incident Reflection Form, developed with input from young people in residential care.

Also available is a set of posters, brochures and two videos which tell children and young people in residential care about their rights and ways to address issues.

The resources have been developed in response to a recommendation from Commissioner Margaret Nyland’s 2016 report The Life They Deserve.  Recommendation 136 from that report proposed that the Guardian’s Office develop an educational program for children and young people in residential care to explain and promote their rights and give them encouragement and the means necessary to have their voices heard.

The live action video shares the stories of young people who relate some of the incidents they faced while living in residential care. It also advises young people in care why it’s important to understand their rights.

For younger people, an animated video describes the Post Incident Reflection Form and how a child in care has the ability to make a complaint at any time.

If resolving an issue with residential care staff does not work, children and young people are encouraged to fill in a complaints form or phone the Complaints Unit directly on 1800 003 305.

Printable files of the posters can be downloaded now from the Resources page of the Guardian’s website and printed copies of the posters and booklets will be available to be ordered from that page in February.

Lolly Jar Circus

girl dancing with ribbonsDrop in to a typical Lolly Jar Circus class and you will see young people, aged four to twenty-six, tumbling, balancing, leaping and juggling.  There is laughter, concentration, effort, frequent failure and renewed effort.

Founder of Lolly Jar Circus, Judy Bowden, assures me that this is all safer than it looks.

‘Our trainers are very experienced, they do lots of warm-ups and progress the young people from simple circus skills to difficult ones, based on their capabilities.

‘The point of social circus is not the skills themselves but the participant’s growth in confidence, resilience and social skills as their strength and coordination grows and success comes.

‘I first saw this sort of thing in action when my own children were involved in Cirkidz and after that I wondered how learning circus skills might benefit young people with disabilities or from disadvantaged backgrounds.

‘Finally, we put together a board and, with some supporters, created Lolly Jar Circus.

‘Five years later, here we are.

‘In our classes are young people with a wide variety of backgrounds and abilities.  In many ways, that is the point, working together and understanding that our community contains many different sorts of people.

‘One of our trainers said recently “what keeps me going is the laughter”, and there’s plenty of that, but also we see the growth in our young participants and hear about positive changes from proud parents.

‘Recently, I was shown a video of a girl with a disability riding her bike for the first time and then there was the young man with cerebral palsy who could walk into school and hang his bag up unaided for the first time.

‘As well as the trainers who are paid, we are operated by a board, volunteers and myself.

‘We have to make a small charge to cover costs like hall-hire, but some of our donations are in the form of scholarships that we can provide to families who couldn’t otherwise afford their children to attend.

‘Some of our students are in state care and it is a good way for them to build skills, confidence and friendships in a safe environment.’

And the future?

‘We have some great supporters including the Department for Human Services and the Sisters of Charity.

‘Right now we have classes in Campbelltown, Glandore, Elizabeth and Windsor Gardens and we probably need to consolidate a bit, but in the future it would be good to have permanent premises of our own and, eventually, a paid manager.’

You can find out more about this great operation at the Lolly Jar Circus website.

 

Safety in residential care

graphic of residential care

When we take children[1] into the care of the state, a prime responsibility is their safety.

We have matched comments about safety given to the Office of the Guardian by children during our monitoring visits and advocacy with those from the December 2016 Royal Commission paper Safe and Sound.  There were overwhelming similarities.  In this article we blend the two sources to consider the questions ‘do children feel safe’, ‘when do they feel safe’ and ‘what would they suggest to make things safer?’

How safe do children feel in residential care?

Residents often feel unsafe in residential care. Bullying and harassment are common. Adolescents report that they are frequently worried by the threat of sexual harassment and assault. Older residents say that the impact of witnessing violence, self-harm and the abuse of fellow-residents, leaves them stressed and feeling unsafe.

Children generally think it is unlikely that they would be abused or harmed by a worker, although a small number report that they have encountered or heard about abusive staff. Some are concerned by the behaviours of ‘creepy adults’ and those who try to create inappropriate and overly-familiar relationships with them. Children assess how safe workers are based on their past experiences of abuse, by watching the adults’ behaviours and by how other residents act around them.

Many children describe residential care as feeling unsafe due to its instability and frequent changes of staff. Some relate times when they were moved to less safe residential care placements for no reason than that other young people could take their rooms.

A few adolescents report that adults outside of residential care take advantage of children in care, exploiting their need for a sense of belonging, accommodation and money. A few report that some children in residential care engage in prostitution.

When do children in residential care feel safe?

Children feel safe in a placement that is home-like and where young people feel welcome.  They like it where things feel ‘normal’ and where adults look out for them.

They want to see that organisations and workers take a resident’s safety seriously, that they are interested and take measures to protect them.

They feel safe when there are cordial relationships with their fellow-residents and workers, and that there are other supportive relationships, such as with a social worker or teacher, with people outside of the unit.

Really building relationships with kids works, because then they feel safer to come to you with pretty much any problem.  They’re not going to come to you with problems, even if it’s something as simple as being bullied, they’re not going to come talk to you if they think you don’t like them or don’t listen.

Safe and Sound, p 66

Stability and predictability are important.  Children need to know what is going to happen, and that any difficulties with fellow-residents can be resolved.  Routines, reasonable rules and an opportunity to have a say in decisions give them confidence and sense of control.

They believe that when they are safe, children and young people feel relaxed and calm and are less likely to be aggressive and to harm each other.

Younger residents tend to value security measures such as locks on doors, surveillance equipment and alarms.  In contrast, for older residents, these measures reinforce their sense that residential care is not home-like and is unsafe.

How could we make things safer?

Placements

Find more suitable care arrangements, particularly for those who are younger and more vulnerable and make better placement decisions that allow residents to have a say in how they are matched with other residents. Treat residential care as a long-term arrangement and make sure that changes are kept to a minimum.

Staffing

Train staff about the things that can harm children and their vulnerabilities, particularly their inexperience about sexual relationships and exploitation.  Have sufficient numbers of properly trained staff so that they have the time to develop relationships, are around and have the time to watch out for threats.

Cooperation

Train staff to take on parent-like responsibilities for protecting residents from harm.  Get staff to discuss with residents the risks and how to keep themselves safe. Get staff and residents to work together to identify safety risks and develop ways of dealing with them. Staff need to take the initiative in enquiring after residents’ safety because it is easier for staff to ask residents if they are being harmed rather than waiting for them to report it. Try to create an atmosphere where there are positive relationships between residents where young people can look out for each other.

Hearing the resident’s voice

Staff need to be prepared to listen when residents raise concerns and to be understanding and patient, even when the issues do not seem important at first.  Residents need to be informed that it is OK to raise an issue, what sorts of issues to raise and how to do it.  Make sure that it is safe to do so and that they will not suffer retribution.

A lot of the time it can feel like nothing happens [when an issues is raised] or it gets lost or stuck in the system… No matter what, [issues] should be followed up by someone and the young person should be kept in the loop with regular communication.

Young person in residential care

The Child and Young Person’s Visitor Scheme that is hosted in the Office of the Guardian is now well under way and we look forwards to presenting more of the views of children and the state of the system in future articles.

[1] We use the term ‘children’ to include children and young people up to the age of 18 years. We use terms such as ‘adolescent’ and ‘pre-teen’ to refer to specific age ranges within that group.

The Guardian’s Year in Review 2017-18

year in review cover

At June 2018 there were 3,695 children in out-of-home care and 3,402 on care and protection orders in South Australia. Many of those children will have thrived in stable, safe and loving placements. Supported by dedicated adults, many will have made the hard journey back from trauma and neglect, developing strong identities and building friendships. Some will have excelled at school, in sport, music or the arts.

However, it is also true that for many children our state continues to seriously fail its obligations as parent.

In the Year in Review 2017-18*, the Guardian considers some of the successes and the delays in the child protection reform process that still leave many children in less-than-ideal circumstances.  She looks at the slow transition to a system based on prevention and early intervention, to improvements in foster and kinship care services and to the ongoing problems challenging residential and emergency care.  Therapeutic care for all children as envisioned by Commissioner Nyland and significant progress in listening to the voices of children in care still seem some way off.

The Year in Review 2017-18 is now available for download.


*The Year in Review 2017-18 uses material originally published in the 2017-18 Annual Report

New resources and a learning game for young people leaving care

A group of young people with care experience boldly reclaimed the term ‘GOM’ (for Guardianship of Minister) with the recent launch of the GOM Central website and the GOM City phone app.

The launch was the culmination of seven months of hard work by project manager Eleanor Goodbourn and the focus group of people who were, or who had recently been, in state care.

‘The need for a project like this had been discussed long before I arrived in April,’ she said.

‘Relationships Australia SA has been providing post care support services for a long time now but were aware that there were some young people who were not accessing service in the current form.

‘Was there a way to support and assist young people who did not access services? In particular, we thought about those who had left care and suddenly found themselves isolated and lacking some of the basic skills you need to get along living on your own.

‘We ran an online survey, testing some ideas about a website and brought the results back to our focus group.  The idea of a game app. caught the imagination of the focus group right away and that became the germ of GOM City.

GOM City

Mighty Kingdom, who are a locally-based but internationally known game developer came on board for the game app.  It was their first venture into social learning games and they were very enthusiastic.

‘Playing the GOM City game teaches some basic skills like budgeting, remembering important events and managing a household.  But the current form of the game could be only the beginning.  There is huge potential in the framework of the game to add in other levels to incorporate other skills.

‘We have made sure that the skills taught in the game align with the Australian Core Skills Framework so those skills can be formally recognised in other domains.  We will be looking for funds to develop this aspect further in the future.

‘You can download the app. free at the iOS App Store or from Google play.

GOM Central

‘The GOM Central website is for all young people in care or who have been in care.  We’ve got a lot of information and links that they can dip into any time when they need it.  We also have a number of videos featuring young people with stories about their time in care, letting them know that they are not alone and they have experiences in common with others. They also share advice and information. One of things we learned in focus groups is how important peer to peer learning is with this group of people.

‘The site also hosts a blog which offers visitors the opportunity to share experiences and knowledge.

‘The young people who have been on this journey with us are the real heroes. They generously shared their ideas and experiences and trialled the games – and you may see some of them on the videos!’