Sentencing young offenders as adults is fundamentally wrong

photo of Penny Wright

Penny Wright – Guardian for Children and Young People in Care

25 September 2017

Children are not adults. We all understand that. Isn’t that why we don’t let young people vote, drink, or buy cigarettes?

Shortly, parliament will be debating a Government proposal to sentence some young offenders as if they are adults. It is fundamentally wrong for two reasons.

First, it flies against everything we know about young people and their behaviour, both from research and from our own experience. We know that young people take risks and sometimes they misbehave. We know that the immature brain does not have the capacity to fully understand risks and weigh up immediate behaviour against longer-term consequences for themselves or others. Research shows that for many young people the capacity to form an ‘adult’ judgement and control their impulses does not happen until their early twenties, five years after they become an ‘adult’ under most laws.

Our laws recognise this and consciously limit young people’s rights to do certain things, and the penalties we impose on them.  So do other societies like ours. This understanding is also reflected in the United Nations Convention on the Rights of the Child, which Australia has signed.

In South Australia, our own child protection laws, which were updated just a few months ago, reflect that children are not adults. They are based on the principle of promoting the best interests of the child or young person in laws, courts and administration. The government’s proposed Bill explicitly seeks to abandon this principle, and even the idea of rehabilitation, where an offence is sufficiently ‘grave’.

And why? The government says it is to make our community safer. There have been several recent cases with tragic consequences and of course every one of us would want to prevent such events occurring again. The problem is that removing the discretion of judges, and prescribing extreme punishments for young people as if they were adults, may satisfy our desire to punish those responsible, but will not actually make us safer. In fact, they are likely to make such offences more likely.

Statistics tell us clearly that the majority of young offenders do not go on to lead a life of crime.  For most, offending tapers off with age, as family, employment and other interests draw them into safer and more respectable behaviours. There will be people reading this who know that – from their own experience or that of their own kids.

What we do with them, before that tapering off happens, can be crucial. Giving judges the option of directing young offenders into programs that address their criminal behaviour, and support them to be trained and educated and moved away from the causes of their offending, will help bring that about. But compulsory long sentences (up to 20 years) can break any positive connections a young person may have – to family and community and place them in an environment where offending is the norm.

Rather than diversionary programs or short but effective stints in juvenile detention with a strong focus on rehabilitation, long sentences will expose young offenders to a graduate program in violence and criminality in adult prison.  What incentives will they have to engage with rehabilitation programs in youth detention  if mandatory sentences mean that all they can look forward to is the certainty of moving into adult prison later on?  Graduating from adult prison with a criminal record would leave a young adult with few options for a career that does not involve crime.

In a climate of grief and loss it is tempting to venture down a path of anger and revenge. But if this leads to extreme laws which go against evidence and our own understanding of the behaviour of young people, who does it benefit?  If we take that path we will irreversibly damage many young lives and find ourselves living in a community that is actually less safe than the one we enjoy today.

This piece first appeared in The Advertiser on 22 September, 2017.
The Guardian;s submission in response to the draft Statutes Amendment (Youths Sentenced as Adults) Bill 2017 is available as a download.

Audits of Annual Reviews 2007 to 2017 – children, systems and practice

19 September 2017

The Guardian’s Office has been auditing the Annual Reviews of children in care for 10 years now.  We do this to advocate for the children, to see how well the Reviews work and to identify broader systemic issues.

Annual reviews are an important means of monitoring the quality of services provided and the outcomes being achieved for children in care. They are intended to be more than an administrative process.  A good annual review focuses on the quality of the child’s care arrangements as a whole

Although required in legislation, only 63 percent were conducted in 2015-16. The number of Annual Reviews for 2016-17 will be available shortly. Based on 10 years of observations and data we can say:

  • Where Annual Reviews are conducted, the quality is very variable. Deficits in the representation of children’s views, the preparation by social workers and the presence of non-Departmental staff lead to inadequate consideration of the child’s circumstances and planning for their needs.
  • Up to 80 percent of children were assessed to be in a long-term, stable and appropriate placement.
  • Numbers of children are not allocated a social worker and, where a worker is allocated, other circumstances prevent the provision of a quality service to children.
  • The cultural needs of many Aboriginal children are not being adequately supported.
  • Significant numbers of children remain in unsuitable placements.
  • Contact between siblings separated in placement is not always facilitated.
  • Life Story Books are implemented for about half of the children.
  • The proportion of children with IEPs has not progressed beyond 80 percent and may be declining.
  • Of the children who are able to comprehend it, many do not receive information about their rights and the proportion who do appears to be declining.

For the background to this summary, you can download the report Audits of Annual Reviews 2007- 2017- children, systems and practice.

Expenditure On Child Protection In South Australia 2015-16

12 September 2017

The Office of the Guardian’s analysis of the Productivity Commission Report on Government Services 2017 (ROGS) data has shown that, compared to the rest of Australia, our state spends significantly less per child on the services that prevent children coming into state care and more per child on out-of-home care once they are part of the system.

On four key expenditure areas ROGS shows:

  • SA expenditure on child protection services per child in 2015-16 was 30.6 per cent of the average Australian rate
  • SA expenditure on family support services per child in 2015-16 was 42.9 per cent of the average Australian rate
  • SA expenditure on intensive family support services per child in 2015-16 was 36.8 per cent of the average Australian rate and lower than all jurisdictions other than Western Australia
  • SA expenditure on out of home care per child in 2015-16 was above the average Australian rate (which was only 62.5 per cent of the SA rate) and greater than all jurisdictions other than the Northern Territory.

This shows that while SA spends more per child overall than most other states, our expenditure is highly concentrated in providing residential and emergency out-of-home care which is approximately 10 times more expensive per child than home based care such as foster and kinship care.

For the full analysis, please download the Guardian’s paper South Australian child protection expenditure from the Report on Government Services 2017.

Addressing the emergency in emergency care

12 September, 2017

Nyland care environment graphicIn emergency care (sometimes referred to as commercial care or, previously in the media, ‘kids in motels’) children are housed in temporary accommodation (such as houses and units) by rotating shifts of workers with minimal specialist training employed by commercial providers.

These arrangements are very unsuitable for children in out of home care.  They do not support the psychological needs and social development of young, vulnerable and often traumatised children. The circumstances also place them at greater risk of abuse.  The Office has observed, and received reports from other sources, of ongoing problems in the quality of care provided for children in emergency care placements.

When the Guardian’s Office started monitoring the circumstances of these children in 2005 they numbered 10 and this grew to a peak of 217 in October 2016.

In 2016-17, based on weekly reports received by the Guardian’s Office:

  • the average number of children per night in emergency care was 190
  • the average length of stay was 178 days
  • about one third of children were 9 years old or younger.

Reviewing emergency care, Commissioner Nyland said ‘Reliance on emergency care by commercial carers should cease in all but genuine emergency circumstances’.

The Government accepted that recommendation and subsequently worked to cease commercial care as a priority.  It has attempted to do this by rapidly expanding the number of residential care placements and transferring some existing commercial care environments into Government management.  At the same time, the number of children coming into care has increased as the prevention and early intervention strategies designed to support families and children to safely stay together have not yet started to have effect.

Numbers of children and length of stay in emergency care in 2017

graph showing trens in emergency care in 2017

A focus on reducing the number of children alone can be problematic.  As this graph shows, while numbers of children in emergency care have been reduced, the average length of stay of those remaining has become longer.  Further, as the Guardian has commented,

… finding a suitable alternative placement involves much more than just finding a bed. A good placement has to consider not just what is best for the child or young person but what is in the interests of residents who already live in that placement… [The Office has seen] a number of placement changes  that were hastily planned and executed, poorly matched and did not involve the input of the children.

For detail about the full range of Government responses to the problems in emergency care see our March 2017 post A place to call home for children in state care – emergency care

 

Sentencing young offenders as adults

31 August 2017

picture of report cover

On 5 July 2017, the Government introduced the Statutes Amendment (Youths Sentenced as Adults) Bill 2017 to Parliament.  The Bill seeks to reverse the previous primary focus in sentencing young offenders from rehabilitation to protection of the public.

The Guardian’s submission in response to the Bill argues that the Bill not only violates many  agreements and principles governing the treatment of young people, including the Government’s own child safety legislation passed this year, but is likely to be ineffective or even counter-productive in increasing public safety.

Download the Guardian’s submission now.

How do NGOs see the state of coordination and collaboration in child protection?

29 August 2017

hands holding jigsaw peices

Commissioner Nyland stated that, in child protection, coordination and collaboration between agencies should be the norm. Non-government organisations (NGOs) responding to the Guardian’s June 2017 survey  said that, in many instances, it was not.

Most NGOs assessed the frequency of cooperation and collaboration as ‘sometimes’ or less. The full analysis and a wider selection of comments can be downloaded from the link at the foot of this post.

Comments were predominantly critical of the levels of coordination and collaboration. These are a few of those submitted. 

…When we are consulted about policy, reforms, structures, processes by government departments it is almost always at the end of the process, is very time limited, doesn’t have clear guidelines re scope of consultation and time frames and impact on decision-making, doesn’t build on the expertise of people in the room or respond to feedback reprocess, doesn’t allow for visionary systems thinking and is focused on government agenda, is not empowering, and doesn’t even do most basic process of feeding back in detail outcomes of the consultation.  Co-design and true partnership nowhere to be seen. 

There has been almost no detailed and expert NGO and carer and young people input into  plans for the CFARNs. The EIRD research agenda does not include mapping the overlap and underlap between services funded from sources other than state government, no input into or info prior to launch of the DCP strategic plan, no DCP scope or information prior to first consultation on OOHC strategy etc.

I have experienced the DCP [as] not willing to always share information with NGOs who are also working with the same children and families.  There seems to be an unwillingness by some workers/offices to see NGO providers as partners and work collaboratively together to achieve the best outcomes for children. 

Our experience is some workers are great at collaborating and coordinating with foster carers and do it frequently, but, most only sometimes and often when pushed by the carer. We are lucky at present we have a great DCP worker.

I have been working for an NGO in this role since January and I liaise with DECD and the DCP in their mentoring programs. My experience with DECD is that they are amazing to collaborate with and an exciting team forging change. The collaboration and support I get from working with DCP workers, their families and DECD is excellent. I have had some experience with collaborations with DCP, NGO’s and Youth Justice.
Download the statistical analysis, including a wider selection of comments, now.

Aboriginal children in state care

22 August 2017

Of the approximately 3,600 children in state care in South Australia on 30 June, 2017, one third were of Aboriginal and Torres Strait Islander descent.

Connection to family, culture and place is important for all children but especially so for Aboriginal and Torres Strait Islander Children.  The forced separation of the Stolen Generations has left a deep scar on the Aboriginal and Torres Strait Islander community and perpetual shame on Australia.

When the Guardian spoke to a gathering of Elders and other concerned people about the wellbeing of Aboriginal and Torres Strait Islander children and young people in the Murraylands in 2015, some very clear messages emerged.

There was a pervading sense of loss. Elders were saddened today by the loss to new generations, the loss of cultural knowledge, loss of language, loss of connection to family and to land.

Cultural connection included connection to other Aboriginal people (with whom they felt most comfortable),  to birth families, to extended families, to local clan groups and to languages and culture. Some spoke about finding connection or themselves and their young people through music, dance and art.

The  strength of the bonds in extended families, Elders told us, needed to be acknowledged and valued but also we needed to recognise that extended families sometimes didn’t have the material resources to look after even more children without some practical assistance.

Schools were identified as playing major part in the success of Aboriginal and Torres Strait Islander children. ‘Just one good teacher’ could make a great difference. But these opportunities were often wasted being only fragmented involvement of the school community in occasional one-off cultural events like NAIDOC Week instead of incorporation of Aboriginal history, language and culture into the mainstream education.

Basic work on culture was not done by many social workers, with Aboriginal children, we were told.Perhaps many lacked the knowledge and comfort with Aboriginal matters and the time, training and support from their organisations to develop the skills and the relationships needed.

Aboriginal children mostly related better to Aboriginal workers, teachers and carers.  Aboriginal adults needed be present in the environment where Aboriginal children were cared for and taught. Knowledge of Aboriginal language, culture, arts and history among non-Aboriginal workers, teachers and carers was thought to be very limited.

Local solutions rather than broad policy settings had contributed to what success there had been for Aboriginal and Torres Strait Islander children.  Solutions that were generated in response to identified needs, that were collaborative efforts by interested parties with appropriate skills and experience, were actively supported by local Aboriginal leaders and had strong cultural themes in activities.

Talking to Aboriginal and Torres Strait Islander young people themselves, they often express regret about their separation from language, country and culture and about the barriers to reconnecting.  Perhaps the final word should go to the five young Aboriginal people in the short video made as a prelude to the meeting in 2015, Aboriginal Young People Speak.

 

Residential care in SA – a quick tour

house and heart graphicIn the last available figures, over 10 per cent of children and young people in state care were in residential care.1 Residential care in South Australia has expanded as the demand for places for children and young people in state care has exceeded the supply of foster and kinship carers.

  • At 30 June 2017, there were 132 residential care houses of which 107 were able to accommodate three or more residents.
  • That number does not include the variety of other temporary arrangements that are made for the approximately160 young people in what is known as ‘commercial’ or ‘emergency care’.
  • The number of residential care houses remained constant at around 60 in previous years, crept up to 71 by the end of 2015-16 and then increased to the current level when the government instituted a planned expansion in 2016-17.
  • About half of the residential care houses are managed by the Department for Child Protection and the others by a range of non-government organisations such as Aboriginal Family Support Services, Anglican Community Care, Junction Australia and Uniting Care Wesley Country SA.
  • Most houses are of a small scale with room to accommodate three young people although some are larger to provide for family groups.
  • Five of the properties are large scale units, designed to accommodate between eight and twelve children and young people.  The Guardian’s monitoring, has shown these larger units to be unsuitable for most residents and the Guardian has recommended their closure.
  • One in five houses is located outside the metropolitan area with concentrations being in Mount Gambier (six) and Whyalla (five) and three each in Murray Bridge, Port Augusta and Port Lincoln.

Children and young people placed in residential care continue to be among the most vulnerable.  The Guardian’s Office is re-examining how it will monitor their well-being in 2017-18 to take account of the increased numbers.

1 The Australian Institute of Health and Welfare (2008) defines residential care as the ‘co-location of residents in a community setting staffed by paid residential care workers.  This is distinct from home-based care arrangements where a child or young person lives in a carer’s home as in foster or kinship care.

The Guardian’s Newsletter – August 2017

pictiure of front page of August 2017 newsletter8 August 2017

This edition follows up on the interest raised in issues for Aboriginal and Torres Strait Islander young people in care in the wake of Aboriginal and Torres Strait Islander Children’s day last Friday.

Advocate Conrad Morris writes on his experience growing up in Aboriginal culture and reflects on Aboriginal children, community and culture.  In another article, we recall the messages conveyed to us from the Murraylands Aboriginal community in the 2015 consultation.

Guardian Penny Wright writes on her approach to her new role and the front page features the artwork of ‘Tezza’ an Aboriginal young man who lives in residential care.

Download the August 2017 Newsletter now.

Who asked for advocacy in 2016-17 and what were the issues?

picture of hands putting together jigsaw pieces1 August 2017

The Guardian’s Office received 292 requests for intervention in the 12 months to 30 June, 2017. Of those, the Office found that 57 were out of the Guardian’s mandate.[1] The remaining 235 in-mandate enquiries represented 321 individual children.[2]  Of the 235 inquiries:

  • 137 were requests for advocacy
  • 43 were consultations about action that could be taken regarding children’s circumstances
  • 35  were complaints that were re-directed
  • 20 were categorised as ‘other’ and included for information only

Some children presenting for advocacy had more than one issue.  The main issues were broadly consistent with those of previous years. They were:

%

Stable and secure placement

19

Safety

15

Contact with significant others

13

Participation in decision making

11

Appropriate care

8

Access to health and disability services

6

Education

5

Understanding their circumstances

5

Nurturing environment

4

Relationship with their case worker

3

Other

11

The major trends are:

  • In-mandate enquiries increased from 145 in 2015-16 to 235 in 2016-17.  This increase (62%) is significantly higher than the increase in numbers of children and young people in state care and detention over the same period.
  • Young people self-referred in the same proportion as the two previous years but the number increased from 41 in 2015-16 to 71 in 2016-17.
  • Enquiries about children and young people in the non home-based care arrangements, (residential care, emergency care and the Adelaide Youth Training Centre) accounted for 53% of the total enquiries.  this was greatly out of proportion to their number in the population in state care and detention.

[1] The Guardian’s mandate is limited to young people in state care and in youth justice detention in South Australia.  Out-of-mandate enquirers were referred, where possible, to appropriate sources of assistance.

2 Some enquiries involve numbers of children.