The Youth Justice Legal Centre (YJLC) recently published a new guide setting out what to bear in mind when representing a young person who is care experienced.
The guide explores many of the themes that have been discussed in two blogs we have written previously (The impact and future of violence reduction units, and Does anyone care about us?, an examination of experiences of the care system for victims and perpetrators of youth violence). It notes that care-experienced children are more than 10-times more likely to have received a custodial sentence than children who have not been in care. According to another quoted statistic, in 2022, 1% of children in England and Wales were in care, but 59% of children in custody in England and Wales were care experienced. Meanwhile, in its article reporting on the guide and wider care-related issues, The Guardian highlighted the staggering numbers of care-experienced people between the ages of 16 and 24 who were convicted of a crime. The article notes that, according to data obtained from the Ministry of Justice, 33% of care-experienced young people had received a caution or a youth conditional caution, as opposed to 4% of their counterparts who were not care experienced.
The Government appears to be aware of the issues that the system currently faces. In November 2018, the Department for Education launched a National Protocol on Reducing the Unnecessary criminalisation of looked after Children and Care Leavers, which explains that a “strong corporate parenting ethos” should promote recovery, resilience and wellbeing, as well as simply keeping children safe (paragraph 2.2), before setting out a number of overarching key principles on which “corporate parents” should base their arrangements. These include making every effort “to avoid unnecessary criminalisation of looked-after children and care leavers” through measures such as prevention activity.
The YJLC guide lists questions that lawyers should ask themselves and the police when representing a care-experienced child, including:
- Lawyers should check with the police whether the child or young adult has been arrested or charged as a consequence of being care experienced. Suggested ways of doing this could be by building a rapport with the officer in the case and making detailed representations to the police and the CPS highlighting whether it is in the public interest to prosecute the child and thereby add to the growing number of cases within the court system. Lawyers should take heed of the need to address this in any representations that are made or alternatively make it a primary factor of mitigation if the client is due for sentence.
- Lawyers should consider how the young person should be supported at the police station, during their case and at court. This includes whether the young person has cognitive or significant mental health issues and seek to address these early.
The guide is clear that the police, Crown Prosecution Service, courts and defence lawyers should all be examining how and why any care experienced suspect has come to be criminalised and use this information to decide how to deal with the case and influence any outcomes.
While these are very good questions to ask as a starting point, it may be worth exploring some further questions such as:
- What support network does the child or young adult have around them?
- What – if any – support has been provided by the social worker or professionals working with the child or young person?
- Is the young person or adult already known to the police, and, if so, in what capacity?
- Is there a plan or programme in place which has preventative steps to assist the young person in not falling back into a life of being permanently criminalised?
The guide also touches on some of the additional questions posed above and notes that care experienced children are known to:
- be more likely to be put in situations where they come into contact with the police;
- be subject to additional restrictions and requirements in care settings;
- be more likely to have experienced trauma and adverse experiences than other children;
- have much higher levels of mental health needs than in the general population – it is key to recognise that neurodiversity and mental health needs are often undiagnosed (the guide reports that at least four-in-five care-experienced children in custody have a special educational need);
- be targets for gangs or victims of child criminal exploitation;
- lack support networks;
- lack maturity and attract less sympathy from professionals and harsher responses from the criminal justice system; and
- experience intersectional disadvantage – black, brown and racialised children are over-represented amongst those in care: children who are mixed heritage are twice as likely to be care experienced than their white or Asian peers; in addition, care-experienced girls are 25-times more likely to receive a custodial sentence than children who have not been in care.
What can lawyers do to help?
Noting the key qualities that are required for lawyers representing children and young people who have been care experienced, the guide explains that a client will be the best source of information as to finding out whether they are care experienced or not. It contains a non-exhaustive list of questions for a lawyer to ask their client, essentially about their living arrangements. The guide suggests:
- Lawyers should show compassion to the young person who is in custody. Young people want a lawyer who checks in on how they are feeling. A lawyer’s role goes beyond their role as solely a legal representative. Care-experienced clients are likely to find interactions with the justice system more traumatising because of their past experiences so lawyers should also be encouraged to use a trauma-based approach to assist them with dealing with the young person.
- Lawyers should find out the context of the allegation. Naturally this usually comes in the form of police disclosure prior to an interview but this may not always be factually accurate, particularly in cases where the case involves allegations made whilst a young person may be living in semi-independent accommodation. Finding out about the young person and treating them with compassion will invariably lead them to providing more details and a comprehensive background to the allegation.
- Lawyers should have an awareness of the realities of the care system albeit they will not have direct experience, they should have a base level of what to expect. Young people want lawyers who understand the “lack of care in care”, and the overcriminalisation of care-experienced children and young adults.
The guide additionally suggests four ways in which defence lawyers can assist when representing those with care experience.
- Ensuring that the national protocol on reducing unnecessary criminalisation of looked after children and care leavers is being followed. This can be done either verbally or perhaps through a standard pre-worded document of representations prepared in advance of attendance at the police station.
- In addition to the representations prepared, argue that care experienced children and young adults should not be criminalised if their offending has arisen as a result of being in care. This can be done in the form of verbal and written representations to the police.
- Be proactive at an early stage if mental or cognitive issues are spotted. Lawyers should consider obtaining a potential psychiatric or psychological assessment which may help to understand the root cause.
- Ensure that the impact of leaving care and the care system is understood by the police, CPS and the courts, all of whom are parties who have a duty to take this into account as referred to in a number of relevant policies (Child Centred Policing Best Practice Framework, National Police Chief Council 2021; Sentencing guideline: Sentencing children and young people, Sentencing Council 2017 para 1.17; Legal Guidance Children as suspects and defendants, CPS 2023).
It is clear that the system is at crisis point. Many will point to the lack of intervention and effectiveness of the corporate parent (the relevant Local Authority) and whether this leaves the young person vulnerable to police intervention as an easy target statistically. In producing their new document, the YJLC has provide some useful and valuable guidance for those representing care-experienced children and young people. The guide may also serve other purposes: to raise awareness of the serious issues facing these people, and to provide them with the encouragement of knowing there are people on their side who truly care.