Context

Children with special educational needs and disabilities (SEND) are hugely over-represented at all points in the criminal justice system. Evidence suggests that 70–90% of children in the justice system have some form of SEND. Yet the lack of support for their communication needs may make these children’s experiences particularly difficult and the impact of educational disruptions as a result of justice system involvement can be particularly severe.

Youth diversion offers many children a pathway out of the criminal justice system. In this informal non-statutory approach, children are offered the chance to partake in a community-based intervention rather than receiving a formal out-of-court disposal or prosecution. Evidence strongly suggests that youth diversion benefits children by reducing their likelihood of coming back into the justice system or getting further entrenched into it.

Youth diversion might be particularly beneficial to children with SEND. However, given the range of communication barriers that children with SEND face in navigating the system, they may be less likely to receive diversion, particularly where communication difficulties are misconstrued as behavioural issues. Unequal access to diversion may create further disparity later on in the youth justice system.

Not fit for purpose

Navigating the criminal justice system requires overcoming challenges around understanding, communication, recall, conduct and decision-making that many children with SEND may find insurmountable in its current form. Though needs differ widely between different children with SEND, commonly occurring struggles include communication and understanding of expectations. Those who face communication difficulties may struggle to deliver a logical and sequential account or give poorly elaborated and monosyllabic replies, are unable to make eye contact, and are seen by some practitioners as being deliberately difficult and non-compliant.

There are particular issues with the way that children with SEND are policed. Due to a lack of basic training around SEND, the report found that attempts to identify or cater to children’s specific needs were rare in police practice. Use of overly complex language by police officers over the course of arrest and during police interviews was also particularly detrimental to the Understanding of children with communication needs. Arresting practice often included the use of physical force and restraints, which was particularly harmful to certain children with SEND, such as those with autistic spectrum disorder.

Identification of SEND in children with both previously diagnosed and undiagnosed SEND was not taking place effectively in the diversion process. While some YJSs had co-located speech and language therapists (SaLT) or other specialists with expertise to diagnose SEND in their team, many did not. Given that a large proportion of children are entering the system with undiagnosed SEND, this means many are not having their needs taken into consideration during the decision-making process or interventions.

Some good practice

In terms of YJS practice itself, the researchers,  Carla McDonald-Heffernan and Carmen Robin-D’Cruz, heard of some very positive work around tailoring interventions to the needs of individual children. This included flexibility around timing of sessions, location and content, with several examples of practitioners carrying out programmes in creative ways that included outdoor activities and different types of stimuli to better engage certain children.

However, this was not standardised across practitioners and locations, meaning some interventions were not well adapted to cater to children with SEND. Resources within YJS were also not always adapted to children with SEND. Written material was sometimes overly complex and inaccessible to many users coming into contact with the YJS.

Conclusions

Many parts of the criminal justice system are currently not working appropriately to provide children with SEND the opportunity to avoid harmful criminal justice system outcomes in the same way as their peers. Work is urgently needed to ensure that processes for accessing and engaging with youth diversion accommodate the commonly occurring needs of children with SEND.

Doing so will not only ensure that youth diversion does not compound the disproportionate number of children with SEND in the justice system by denying them access to an off-ramp, but it will also benefit all children in this system by contributing to a culture which is sensitive to their needs.

The report concludes with a series of six specific recommendations:

1. The National Police Chiefs’ Council should ensure the policing of children is responding appropriately to the needs of children with SEND.
2. The NPCC and the Crown Prosecution Service should provide clarity on the requirements surrounding admission of guilt, acceptance of responsibility and remorse
3. Legal regulatory bodies should ensure that children with SEND are receiving adequate and accessible legal advice.
4. The Youth Justice Board should carry out or commission additional research to investigate the role of appropriate adults in supporting children with SEND.
5. YJSs should develop their diversion processes to ensure they include co-location of Speech and Language Therapists and balanced joint decision-making panels.
6. YJB should share good practice between YJSs around adapting interventions for children with SEND.