Care-experienced children and the criminal justice system

Boy alone

The current study examines the factors underlying pathways from out-of-home care into the criminal justice system. Using a multi-method approach—specifically, court observations, file reviews and qualitative interviews—we found evidence of how histories of trauma and situational factors relating to the care environment interact to increase criminalisation. While many policy initiatives have been developed to address this criminalisation, in all parts of our study we found little evidence these are having an impact on practice in relation to care-experienced children. Some innovations we observed in our United Kingdom case study offer potential solutions to address this serious and ongoing problem.


URLs correct as at February 2024

Anda RF et al. 2006. The enduring effects of abuse and related adverse experiences in childhood. European Archives of Psychiatry and Clinical Neuroscience 256(3): 174–186. DOI: 10.1007/s00406-005-0624-4

Australian Bureau of Statistics (ABS) 2018. Prisoners in Australia 2018. ABS cat. no. 4517.0. Canberra: ABS

Australian Institute of Health and Welfare (AIHW) 2018. Child protection Australia 2016–17. Canberra: AIHW

Australian Institute of Health and Welfare (AIHW) 2017. Young people in child protection and under youth justice supervision 2015–16. Canberra: AIHW

Booth T 2012. ‘Cooling out’ victims of crime: Managing victim participation in the sentencing process in a superior sentencing court. Australian and New Zealand Journal of Criminology 45(2): 214–30

Carnie J & Broderick R 2015. Prisoner Survey 2015, vol 15. Edinburgh: Scottish Prison Service

Courtney ME & Dworsky A 2006. Early outcomes for young adults transitioning from out-of-home care in the USA. Child and Family Social Work 11(3): 209–219. DOI: 10.1111/j.1365-2206.2006.00433.x

Cunneen C & Porter A 2017. Indigenous peoples and criminal justice in Australia. In A Deckert & R Sarre (eds), The Palgrave Handbook of Australian and New Zealand Criminology, Crime and Justice. Cham, Switzerland: Springer

Department of Education 2018. The national protocol on reducing unnecessary criminalisation of looked-after children and care leavers. London: UK Government

Dixon A, Howie P & Starling J 2005. Trauma exposure, posttraumatic stress, and psychiatric comorbidity in female juvenile offenders. Journal of the American Academy of Child and Adolescent Psychiatry 44(8): 798–806

Gerard A, McGrath A, Colvin E & McFarlane K 2019. ‘I’m not getting out of bed!’ The criminalisation of young people in residential care. Australian and New Zealand Journal of Criminology 52(1): 76–93. DOI: 10.1177/0004865818778739

Harris ME & Fallot RD 2001. Using trauma theory to design service systems: New directions for mental health services. Hoboken, New Jersey: Wiley

Howard League for Penal Reform 2017. Ending the criminalisation of children in residential care: Briefing one. London: Howard League for Penal Reform

Human Rights and Equal Opportunity Commission (HREOC) 1997. Bringing them home: Report of the national inquiry into the separation of Aboriginal and Torres Strait Islander children from their families. Sydney: HREOC

Malvaso CG & Delfabbro P 2015. Offending behaviour among young people with complex needs in the Australian out-of-home care system. Journal of Child and Family Studies 24(12): 3561–3569. DOI: 10.1007/s10826-015-0157-z

McFarlane K 2010. From care to custody: Young women in out-of-home care in the criminal justice system. Current Issues in Criminal Justice 22(2): 345–353

McFarlane K 2017a. Care-criminalisation: The involvement of children in out-of-home care in the New South Wales criminal justice system. Australian and New Zealand Journal of Criminology 51(3): 412–433

McFarlane K 2017b. The criminalisation of children in out-of-home care: Findings from an Australian research study. Chronical of the International Association of Youth and Family Judges and Magistrates July 2017: 61–66

NSW Department of Family and Community Services (FACS) 2017. NSW therapeutic care framework. Sydney: FACS

NSW Legislative Council 2017. Child protection. NSW Parliament General Purpose Standing Committee No 2. Sydney: NSW Parliament

Prison Reform Trust 2016. In care, out of trouble: An independent review chaired by Lord Laming. London: Prison Reform Trust

Purdie N, Dudgeon P & Walker R 2010. Working together: Aboriginal and Torres Strait Islander mental health and wellbeing principles and practice. Canberra: Department of Health and Ageing

Raman S et al. 2017. Taking culture seriously: Can we improve the developmental health and well‐being of Australian Aboriginal children in out‐of‐home care? Child: Care, Health and Development 43(6): 899–905

Ringland C, Weatherburn D & Poynton S 2015. Can child protection data improve the prediction of re-offending in young persons? Crime and Justice Bulletin no. 188. Sydney: NSW Bureau of Crime Statistics and Research

Ryan JP & Testa MF 2005. Child maltreatment and juvenile delinquency: Investigating the role of placement and placement instability. Children and Youth Services Review 27(3): 227–249

Staines J 2016. Risk, adverse influence and criminalisation: Understanding the over-representation of looked after children in the youth justice system. London: Prison Reform Trust

Stanley E 2017. From care to custody: Trajectories of children in post-war New Zealand. Youth Justice 17(1): 57–72

Tait D 2001. Popular sovereignty and the justice process: Towards a comparative methodology for observing courtroom rituals. Contemporary Justice Review 4(2): 201–218

Weatherburn D 2014. Arresting incarceration: Pathways out of Indigenous imprisonment. Canberra: Aboriginal Studies Press