New practical guide
A group of leading charities, lawyers and care experienced children and young adults have worked together to produce a new guide for lawyers to help reduce the over-criminalisation of care experienced children and young adults. The guide, published on 12 September 2023, is intended to be a key resource for all lawyers working with children and young adults in the criminal justice system. It provides powerful testimony from children and young adults with lived experience, alongside the key legal framework and practical tips for lawyers.
The guide, entitled “Dare to Care” is published by the Youth Justice Legal Centre and is the 16th publication in its seminal series of practical guides aimed at lawyers working with children and young people. It was written by Kate Aubrey-Johnson (barrister, @mediate_kate) and Dr Laura Janes (solicitor, @LauraJanes_UK) in collaboration with the policy forum at the Drive Forward Foundation. The guide supports criminal lawyers representing care experienced children and young adults:
- Understand the relevant legal framework
- Reduce unnecessarily criminalization
- Achieve better outcomes
Care experienced children are up to six times more likely to be criminalised than other children. Just over half of care experienced children will have a criminal conviction by the age of 24, compared to just over a tenth of their non care experienced peers of the same age. Care experienced children are over 10 times more likely to have received a custodial sentence than children who have not been in care. In 2022, just 1% of children in England were in care, but 59% of children in custody in England and Wales were care experienced.
Lawyers should be aware of the duty to prevent the unnecessary criminalisation of looked after children and care leavers. A prosecution may not be proportionate because of their care experience.
Lawyers should ask:
- has the child or young adult been arrested or charged as a consequence of being care experienced?
- is it in the public interest to prosecute them?
- how should they be supported at the police station, during their case and at court?
- is their care experience relevant to any potential defences and legal arguments?
- should their care experience entitle them to a reduction in their sentence?
The concept of adultification is when notions of innocence and vulnerability are not afforded to certain children. This is determined by people and institutions who hold power over them. When adultification occurs outside of the home it is always based on discrimination and bias.
Lawyers of care experienced young people should:
- ensure that ‘The national protocol on reducing unnecessary criminalisation of looked-after children and care leavers’ is followed
- argue that care experienced children and young adults shouldn’t be criminalised if their offending has arisen as a result of being in care
- consider whether a psychological or psychiatric assessment may help understand the context of a care experienced person’s behaviour
- identify and make use of the modern slavery defence
- ensure that the impact of leaving care is understood by the police, the CPS and the courts, who have a duty to take this into account
- explain the adverse impact of a criminal record for a care experienced person
- ensure girls receive gender-specific, trauma informed support and interventions
- identify adultification, explain the concept to decision-makers and obtain evidence, in order to reframe the narrative.
Key requirements for lawyers
In addition to the legal framework and technical advice, the consultation with children and young people who are care experienced also demonstrates the importance of the approach which lawyers take to working with this client group.
Care experienced children and young adults want lawyers who:
- Show compassion
– ‘I want a lawyer who asks how I am’
– ‘Lawyers who think about being a legal representative as “more than just a job”’
– ‘Our needs are complex. Professionals often lack humanity, compassion and can be dismissive but they need to show compassion and have awareness. Lawyers are just as responsible for that young person’s life.’
- Use a trauma-informed approach
– Care experienced clients ‘are likely to find contact with the justice system more traumatising because of their past experiences’.
– ‘We are all different. We go through different types of care but we all have trauma.’
– ‘I have to tell my story again and again. It’s long and upsetting every time’ – avoid asking information about traumatic experiences if you can get the information elsewhere.
- Find out the context of the allegation
– ‘Get to know the young person. Find out their story. Treat them like a person not a criminal. Don’t be judging. Be open with them so they can be open with you. Understand their context.’
– ‘Context can mean everything.’
- Have an awareness of the realities of the care system
– Young people want ‘lawyers who have an understanding of the lack of care in “care”’.
– ‘Lawyers who understand the systemic over-criminalisation of care experienced children and young adults.’
- Ensure that the child or young adult’s voice is heard
– ‘I felt the judge was reading about me rather than hearing from me.’
– ‘I found it difficult to express how I felt.’
– Bring the child’s voice into the interview or court hearing. Use their words and avoid paraphrasing.
Thanks to Andy Aitchison for kind permission to use the header image in this post. You can see Andy’s work here