New project to explore growing numbers of dual involved young people

Conrad Morris, Senior Advocate, Dual Involved

A new project within the Office of the Guardian for Children and Young People is underway, looking into the growing number of children and young people under guardianship orders who are also caught up in the youth justice system. Despite rates of detention for children and young people in South Australia improving, this has not been the case for young people coming from a care background.

Since we started collecting data in 2017 on the number of admissions to the Kurlana Tapa Youth Justice Centre, there has been a 20.9% increase of individual children and young people admitted to the centre who were in care at the time of their admission, with this cohort making up a third of the centre’s average daily population in 2019-20.

Based on data from our last Training Centre Visitor annual report, in 2019-20, 28.3% of all individuals admitted to the centre were in care, with many of these young people admitted to the centre on multiple occasions, at a rate much higher than those not in care.

What is contributing to these young people offending and, in some cases, reoffending on multiple occasions? To better understand what is going on, we have launched the South Australian Dual Involved (SADI) project. Headed up by Conrad Morris, who was previously our Advocate for Aboriginal Children, the project will primarily look at children and young people living in care who are currently detained in the justice centre, although those in care who have previously been detained and are at risk of reoffending will also be included in the scope of the project.

“Unfortunately we are seeing more and more young people who are from residential care coming into the centre,” Conrad said.

“As part of this project we want to look at why the numbers are increasing and what is causing the young people to offend. Whether this is because the young people are being caught up in peer offending within their placement, or how their behaviours are being managed within the house.”

“Some young people have also told us they would rather stay in the centre than go back to their placement, which is really concerning. We need to look into why this is and provide support and advocacy to these young people,” Conrad said.

The project is still in its infancy, however Conrad is working to build relationships with dual involved young people and will provide direct advocacy to them as required, while also supporting our other Advocates when dealing with children and young people in care who are currently detained in the centre or are at risk of being admitted.

Conrad hopes to collaborate with other community or service provider stakeholders involved in the life of the child or young person to help put the necessary supports in place to stop their offending and consequent admissions into the centre. The project will also identify, develop and implement systemic interventions on behalf of individuals and groups of dual involved children and young people, as required.

If you would like more information about the SADI project, contact Conrad at conrad.morris@sa.gov.au.

Law intern finds doli incapax is not protecting children from entering youth justice system

We were lucky enough to have our first law student complete an internship with our office last year. We set Brooke the task to research the concept of doli incapax and how it is applied to children under the age of 14 who come before the youth court.

But first, what is doli incapax? If a child is between the ages of 10 and 14, they are presumed to be doli incapax (from the Latin ‘incapable of evil’) and cannot be convicted of a crime, unless the prosecution can prove the child had the mental capacity to understand what they did was seriously wrong, and not just ‘naughty’.

Through Brooke’s research and hearing first-hand accounts of how doli incapax operates in South Australia from various stakeholders, it has become clear that doli incapax is not working as it is intended.

Brooke found that, instead of the prosecution meeting its requirement to prove the child did have the necessary mental capacity, doli incapax is commonly viewed as a ‘defence’. This means that defence lawyers are having to prove the child did not have the mental capacity to tell the difference between serious wrongdoing and naughtiness. Although the common law presumes that children under the age of 14 do not have capacity to commit a crime, this reversal of the onus means that, in practical terms, those under 14 are assumed to have capacity and defence lawyers must disprove it.

Brooke also found that:

 – Doli incapax assessments, which are commonly relied upon to establish a child’s doli incapax status, can be difficult to get, take a large amount of time to complete and can see children and young people remanded and bailed from Kurlana Tapa Youth Justice Centre multiple times       while they are undertaken

– There is a lack of understanding as to how the presumption should be applied throughout the youth justice community, especially from SAPOL

– Children and young people who are Aboriginal, in the care of the Department for Child Protection, have a disability and/or live in regional, rural or remote areas are particularly disadvantaged by the youth justice system

– There are limited services available to help children and young people who are doli incapax (ie do not sufficiently understand the nature of their behaviour) to correct their behaviour and avoid reoffending in the same way

Based on her research findings, Brooke made the following recommendations on how this law could better protect children from entering the youth justice system in the first place:

– Raise the minimum age of criminal responsibility to 14 years of age

– Alternatively, insert the principle of doli incapax into legislation to clearly outline its application

– Increase referral services for doli incapax children and young people to teach them why their behaviour was wrong and help them to change it

– Ensure that the meaning and implications of doli incapax is included in SAPOL interview procedures

– Ensure that those who use children and young people below the age of 14 to commit crimes on their behalf are held criminally responsible

Brooke’s research and recommendations offer a valuable insight and perspective into how we can ensure better outcomes for children under 14 years old who find themselves before the courts. Unfortunately, there is extensive evidence that the younger the child is when they come into contact with the youth justice system, the more likely they are to reoffend – and start on a path to life-long involvement in the criminal justice system. This issue only highlights our ongoing call to urgently raise the minimum age of criminal responsibility from 10 to 14 years – a concern which was also raised by the United Nations last month.

Welcoming our new principal advocate

We would like to give a warm welcome to our new Principal Advocate for the Training Centre Visitor Unit (TCVU), Simone Deegan. Simone will be joining the team for the next 12 months while Belinda Lorek is taking leave.

Simone has a background in law and criminology as a researcher and (legal) advocate with a particular interest in the experience of young adults in the criminal justice system. She has previously worked as a defence solicitor for young people and adults charged with a range of offences.

More recently Simone has been researching the circumstances and needs of ‘juveniles’ charged with murder. Her research work has given rise to both systemic and individual advocacy to improve the law and the outcomes for individuals caught up in the criminal justice system. Simone is acquainted with the work of the TCVU and produced a thematic analysis of the voices of the residents for the TCV Pilot Inspection Report last year.

We hope you join us in welcoming Simone to the team. We decided to ask her a few questions to help us get to know her better…

What motivates you to advocate for children and young people caught up in the youth justice system?

Misconceptions about who they are and why they offend. While not discounting the role of personal responsibility or choice in offending behaviour, there needs to be recognition that who, when and where you are plays a large role in the choices that are available to you. My work is also informed by the idea of the juvenile brain as plastic and open to experience.

How do you think learnings from your previous roles will support this new role in advocating for the wellbeing and rights for children and young people in detention?

My background as a solicitor and as a researcher into serious crime, repeat offending and desistance (i.e. why and how do people stop doing crime) gives me the practical skills and the theoretical knowledge of what works well, and not so well, for young people in secure care and prison environments.

What are you most looking forward to in the role as principal advocate?

Working with young people to make a difference, however big or small, in their lives. I am also looking forward to forming successful working relationships with other professional people and learning more about what they do and how the pieces of the puzzle come together.

What are three words that best describe you?

Determined, passionate and driven.

What do you like to do when you’re not at work?

Anything fitness related: competitive tennis, running, lifting weights … not to mention cooking and eating (but mostly eating!!!).

 

A year of reforms and achievements for young people in detention

Humane and respectful reforms for children and young people detained in SA’s only youth detention centre have been highlighted in the Training Centre Visitor’s latest annual report.

In the 2019-20 year, despite considerable stresses and uncertainty in the wake of COVID-19,  the TCV and staff were working hard to provide ongoing advocacy to make positive changes for the young cohort detained in the Kurlana Tapa Youth Justice Centre (KTYJC).

“This has been the biggest year yet for the program and my staff,” Training Centre Visitor, Penny Wright said.

“Three years ago, we set about consulting with young people in the centre, then designing and implementing the Training Centre Visitor Program. Today we acknowledge the mammoth efforts my team have made in advancing the interests and rights of the young people in the centre, assisted by the willingness of the Department for Human Services (DHS) and Youth Justice Executive to respond thoughtfully to the issues we have brought to their attention,” Penny said.

“We acknowledge decisions by DHS Youth Justice and KTYJC management to allow our regular, safe face to face contact with the young people throughout the peak of the COVID-19 pandemic in SA. This continued contact ensured that the young detainees had ongoing access to our support in what was an extremely difficult time for everyone.”

Here is a snapshot of the TCV annual report.

Overview of children and young people detained

The graphs below indicate the number of individual children and young people admitted to the KTYJC (graph 1) and the number of admissions in total (graph 2).

Highlights of the year

– Use of spit hoods prohibited

– End of (almost all) semi-naked searches

– Greater privacy in bedrooms and toilets

– Respectful access to sanitary products for girls and young women

First formal inspection of the centre carried out, obtaining the voices of the children and young people, and examining whether their rights and needs are being met.

Concerns raised

– Need for more supportive rehabilitation and care that is trauma focussed

– Lack of legal powers under legislation for the TCV to provide oversight and advocacy for children and young people who are outside KTYJC but still detained within the criminal justice system (ie in transit to court or in hospital)

– Increasing number of children and young people under a guardianship order of the Chief Executive of the Department for Child Protection who end up in detention

– Increasing number of girls and young women being detained

– Cultural needs of Aboriginal children and young people continue to be a high priority

– High numbers of children between the ages of 10-14 admitted to the centre.

You can download the report in full here.

 

 

Young people in detention speak out in inaugural inspection report

‘Phase 2’ artwork by young person during the inspection.

The children and young people in South Australia’s youth detention centre have spoken. Bullying, dignity, respect and the need for more cultural programs are some of the topics raised in our just released inspection report: Great Responsibility: Report on the 2019 Pilot Inspection of the Adelaide Youth Training Centre (now known as the Kurlana Tapa Youth Justice Centre).

The report is the outcome of our first official inspection of the training centre, conducted in November last year. It represents the culmination of two years of hard work from our team in setting up the Training Centre Visitor program.

The voices of young people and the centre’s staff make for an honest account of life in the centre and are explored in detail in the report.

Our findings delve into whether the rights of the detained children and young people are being met and to what extent the centre’s environment contributes to its objectives of rehabilitation and reintegration of these young people back into the community.

The report contains 10 wide-ranging recommendations on how the centre can better provide for the needs of the young people, including a review as to whether there is an appropriate balance between a model based on security and correction on one hand and one that supports rehabilitation and reintegration on the other.

We give our heartfelt thanks to everyone who was involved in the inspection, specifically to the children and young people and staff who shared their personal experiences about what life in the centre is really like.

You can view the report in full.

We have also produced a child-friendly poster and brochure that offers a summary of what the young people told us and the recommendations we made in the report.

Breaking down communication barriers in youth detention – the real difference “speechies” can make!


Senior Speech Pathologists Melissa Saliba (left) and Larissa Ashton

It is estimated 90% of young people in the Adelaide Youth Training Centre (AYTC) are at risk of having a language difficulty*. A language difficulty is when a person has trouble understanding what is being said to them and is unable to express themselves clearly through their words, sentences and stories. And the effects of such a difficulty can be devastating.

“A person ‘at risk’ of having a language difficulty means if they underwent further detailed assessment, it is quite possible they would be diagnosed as having a language disorder,” according to Senior Speech Pathologist with DHS’s Youth Justice Division, Melissa Saliba.

“When a person cannot communicate and process language well, they can become frustrated, and if they are not supported or their needs are not met, it can result in the downward spiral of disengaging from school and making poor decisions,” Melissa said.

Melissa is one of the speech pathologists working with young people in the youth justice system (including in the AYTC) as part of Youth Justice’s state-wide rehabilitation program. The program aims to give young people access to speech pathologists, psychologists and occupational therapists, to help improve their short- and long-term outcomes.

AYTC Senior Speech Pathologist Larissa Ashton said the biggest problem is that communication difficulties often go undiagnosed.

“A lot of young people don’t know they have a language difficulty and have just ‘survived’. They are also very good at hiding their issues,” Larissa said.

“For others who do know they have difficulties, they often don’t have the necessary supports and opportunities to overcome them. Quite often the first time a young person receives support is once they have been detained at the centre.”

Both Melissa and Larissa have been working alongside the psychologists and occupational therapist who work with the young people, to piece together a young person’s needs and identify what support they need.

“Rather than seeing a young person as misbehaving, we explore the underlining reason for their behaviour and identify what support they might need,” Melissa said.

Once a young person is referred to the speech pathology service, the team then work with the young person, their families, school and other service providers to create an overall picture of what the young person is doing well in, and where they need help.

“Once we have assessed what their communication needs are, we will work with the young person, in the visitor centre, the unit or their classroom, to identify ways to help overcome some of their communication difficulties,” Melissa said. “We aim to work towards a focussed goal – for example, meeting new people.”

“Young people are keen to hear the results of their individual assessment. Knowing they have a language difficulty helps things make sense for them,” Larissa said. “After a session they often ask when we will be back, so our engagement seems to be making an impact.”

The role of the AYTC’s speech pathologists doesn’t just include working with young people. The speech pathology team also works directly with AYTC staff and service providers (both in and outside the centre) who work with the young people, to help them communicate in a way that is accessible and can be understood.

“It can be as simple as adjusting the way they communicate, like by adding more visual context, simplifying their language and checking in with the young person to ask if they understand what is being said,” Melissa said.

Since their time within the centre, both Larissa and Melissa have noticed staff becoming more adept at noticing the signs of language difficulties and have changed the way they communicate with the young people.

In the future, the speech pathology team hopes to review the written policies and consent forms given to residents to ensure they can fully understand their rights and responsibilities while in the centre.

Due to the current COVID-19 restrictions, the speech pathology team – along with AYTC’s other allied health services – is continuing to provide services to the young people via phone. Work is currently underway by the AYTC and the Department for Human Services to obtain the equipment needed to provide these services via video calls.

You can see just what a difference targeted speech pathology made for a particular young person in the NSW youth justice system in this inspiring video.

Identifying communication difficulties

Here are some signs that a young person has communication difficulties:

  • often says “I don’t know” or “I forgot”
  • uses lots of vague words (eg “things” or “stuff”)
  • unable to paraphrase what you have told them
  • cannot follow instructions
  • avoids reading or writing tasks
  • avoids eye contact.

What can you do if you suspect a young person has a communication difficulty?

  • Simplify the language you use when talking to young people – use short sentences, avoid jargon and keep instructions brief
  • Try using images (e.g drawings, pictures, a few written words) when communicating to a young person
  • Check in with the young person to ask if they understand what you have said
  • Seek help from a qualified speech pathologist.

*This 90% figure is based on results from a language screening assessment undertaken as part of the 2019 AYTC screening project to assess the needs of the young people and look at what services they may need.

Cultural training project gives young people their voice


Martin Hinton and Travis Thomas

Last week our office celebrated the work of two young people who shared their experiences across the courts, child protection and youth justice systems to better educate Judges and Magistrates when dealing with Aboriginal people who appear before the courts.

The video, featuring the young people who were previously detained in the Adelaide Youth Training Centre, is part of a bigger project from the Courts Administration Authority (led by Martin Hinton, Director Public Prosecution, formerly Justice Hinton) to improve existing cultural awareness training for Judges and Magistrates. This video aims to provide an insight into what life is like for these young Aboriginal people and the role the courts can play in ensuring their voices are heard.

While only one young person was able to attend our celebration, we wanted to acknowledge both of the amazing young people who were willing to share their stories for this project and tell the courts what they wanted to see changed.

Training Centre Advocate, Travis Thomas, and Advocate, Aboriginal Children, Conrad Morris, supported the young people in the lead-up to and throughout the project.

Conrad noted the planning and workshop that was held prior to the filming was essential in providing the young people with a safe space where they were confident to share their voice. The footage of the two young people was shot in just one take which is a mighty impressive effort!

At our afternoon tea celebration, Martin said he was impressed by all the work Conrad and Travis had done to help pull this video together. He also said how proud he was of the two young people, and how brave they were in sharing their stories.

“If the young people don’t stand up for themselves, then we [Judges and Magistrates] can’t get better,” Martin said.

“That’s the reason I did it [to change the mindset of the courts],” the young person said. The young person called for Judges to ‘listen to what we have to say’ and ‘give us more opportunity to do the right thing’.

The young person also told us that since the making of the video ‘the judge actually talked to me’ when they were last in court.

For privacy reasons, we are unable to share the video but we expect and hope the flow-on effects of the project will be evident when the voices of young people are more vigorously sought and heard during court processes.

Call to raise the minimum age of criminal responsibility

boy leaping in the air

Across Australia a child as young as 10 can be locked up in detention for breaking the law. Time in detention is meant to ‘teach them a lesson’ and to change their criminal behaviours, but all the evidence tells us detention does nothing to deter the child from committing future crimes. In fact, the younger the child is to have contact with youth justice, the higher the chances they have of further offending and starting on the path to a life-long involvement in the criminal justice system.

Last financial year, 51 individual children and young people aged between 10 and 13 were admitted to the Adelaide Youth Training Centre (AYTC). They were admitted a total of 131 times, meaning that on average, each was detained at the centre more than twice. It is important to note most children held in the AYTC have not even been convicted of committing a crime.

This raises a significant concern that these young children are not getting the right support they need to address their offending behaviours, both in detention and out in the community. Studies show that to help rehabilitate these young children they need access to family, culture, education, support for individual disabilities, and opportunities to promote healing from past trauma that many of this cohort have experienced.

There is a growing momentum in Australia to raise the minimum age of criminal responsibility to at least 14. This is supported by the Australian and New Zealand Children’s Commissioners and Guardians and backed up by the United Nations Committee on the Rights of the Child who late last year called for Australia to raise the minimum age. The just released documentary, In My Blood It Runs, is also calling for change.

The Council of Attorneys General has set up a working group looking into the age of criminal responsibility. Last month our office provided feedback into the review, urging the working group to raise the minimum age to 14 as we believe the current practices do not provide the best outcomes for these vulnerable and disadvantaged young children.

Outlined in our submission we stated that the number of children detained disproportionately affects Aboriginal children (for example, in SA during 2017-18, there were 37 Aboriginal 10-13 year olds detained compared to 17 non-Aboriginal 10-13 year olds).

Children with a disability and those in care also made up a disproportionate number of children detained. We know that in 2017-18, almost a quarter of those detained in the AYTC were in care at the time of their admission. What we don’t know is how many of those young people come from a residential or commercial care environment – this is something we will address in our next dual status paper (to be out in the coming months).

In the meantime, we are urging change to protect the rights of these vulnerable young children and to prevent them from entering the youth justice system in the first place.

You can read our full submission to the working group.

Investigation calls for review of isolation practices in Adelaide Youth Training Centre

A troubling new report into the treatment of two young people in the Adelaide Youth Training Centre (AYTC) has highlighted the need for Youth Justice to review their use of isolation and how they offer rehabilitation for the young people detained in the centre.

The latest Ombudsman SA report which was released early this week has criticised the Department of Human Services (formerly Department for Communities and Social Inclusion) for its treatment of two young people in the AYTC by subjecting them to inhumane treatment, including extended periods of isolation and solitary confinement as a form of punishment for their behaviour.

In 2017, based on concerns shared by our office, the Ombudsman investigated the treatment of the young males (both 17 at the time) who were confined to their cells for more than 22 hours per day. The young people were not provided sufficient access to exercise, education, contact with family and experienced a lack of cultural recognition and support.

Training Centre Visitor Penny Wright has expressed her great concern these practices occurred and says that these are not isolated examples of the inappropriate use of seclusion and isolation.

“Isolation and segregation can be very, very damaging – especially to young people who have already experienced trauma in their lives – that’s why there are serious restrictions on these practices.”

“As the Ombudsman noted, rather than this particular segregation always being a response to the young people’s behaviours, their poor behaviour was often actually due to long periods of isolation.”

The Ombudsman referred to the views of the Royal Australian and New Zealand College of Psychiatry that-

“Punitive approaches to the management of youth justice services… are unlikely to resolve the behavioural issues of detainees; instead, they serve to reinforce the sense of mistrust experienced by many children and young people in custody. Without a trauma informed approach to the management of youth justice centre, at-risk children and young people will continue to face significant obstacles in their paths to recovery and rehabilitation, and staff in youth detention centre will continue to face significant difficulties in managing children and young people in their care.”

According to the Ombudsman, “A functioning youth justice system should not cause the young person further harm or contribute to their reoffending. The system should not do any harm to a young person and young people should leave the youth justice system in a better life position than when they entered it. In my view, the youth justice system failed [these two young people].”

The investigation concluded the treatment of the two young people was ‘unreasonable, wrong, oppressive, unjust and contrary to law’. The Ombudsman made 20 recommendations, all of which the Department of Human Services has accepted.

Penny acknowledges the department has made some improvements since these events in 2017 and has agreed to make further changes.

“I do think Youth Justice has a new willingness to look carefully at their practices and make real changes,” Penny said.

“We know of a number of young people with complex needs in AYTC today who will benefit if the department acts on these recommendations swiftly. As part of my role as Training Centre Visitor, my staff and I will be monitoring the extent to which the reforms are taken up.”

Report finds children in care overrepresented in youth justice

Almost one quarter of children and young people who are detained in the Adelaide Youth Training Centre are under the legal guardianship of the state and are likely to be living in large residential care homes, a new report from our office has found.

A PERFECT STORM? Dual status children and young people in South Australia’s child protection and youth justice systems is the first report from a series of papers looking into the disproportionate number of children and young people who enter the youth justice system from residential care.

The report highlights that it’s not that these individual children and young people are inherently ‘criminal’ but that systems make their criminalisation more likely.

This suggests the state’s child protection system is struggling to undertake its core function of keeping children and young people safe – a concern that our office raised last week in the wake of the release of our annual report.

This new report finds that inadequate planning, policy, procedure, and communication across government and non-government systems mean that children and young people in care who need therapeutic support are instead being drawn into the criminal justice system.

The United Nations Committee on the Rights of the Child recently stated that Australia’s child protection systems are insufficiently resourced, resulting in poorly supported staff, inadequate placement matching, and excessive reliance on police interference and youth justice systems to manage behavioural problems without providing appropriate therapeutic intervention.

Guardian for Children and Young People and Training Centre Visitor Penny Wright states that each of these factors contribute to the overrepresentation of those in care entering the youth justice system.

Ms Wright notes these vulnerable children and young people have been exposed to significant trauma and abuse prior to entering the child protection system and are not being provided with the care and support they need to heal.

“Instead of being provided with the essential therapeutic care they need, these young people are being put into homes and looked after by inadequately supported staff with other young people who come from troubled backgrounds. The young people’s behaviour is ‘managed’ by police and the youth justice system, and then at the end of the day they are taken back to the same environment in which the criminal behaviour took place,” Ms Wright said.

“What these children and young people need is a system that focusses on their safety and well-being first and foremost, keeping in mind the difficult circumstances that brought them into the system in the first place.”

“As one dual status young person eloquently said: ‘They kept putting us in the same situation but expecting a different outcome’.”

Download the first dual status report.

Further reports from this series will be made available in the coming months.