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The vulnerability of children and young people in the legal system is In the Spotlight

by PeakCare Qld on 25th February 2016

Home -> Articles -> 2016 -> February -> The vulnerability of children and young people in the legal system is In the Spotlight

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Youth Advocacy Centre (YAC) offers free legal services to young people. They also offer socail welfare support and services to children, young people and families with a specific focus on those aged 10 to 18 years. YAC’s primary client group is those who are involved in, or are at risk of involvementin, the youth justice and/or the child protection system. This includes young people who are homeless or at risk of homelessness and live in or around the greater Brisbane region.

YAC has a long history of advocating for and supporting children and young people in the child protection system. YAC’s team of professionals appreciate that legal issues facing children and young people cannot be isolated from other aspects of their lives. For this reason YAC operates in a multi-disciplinary environment which includes lawyers and social science professionals to ensure holistic support to children and young people facing legal and associated issues.

It is an alarming statistic that in Queensland 80% of young people involved with the youth justice system have experiences in the child protection system. YAC’s lawyers regularly act for children and young people living in out of home care who have been charged with criminal offences resulting from their behaviour in an out of home care setting.

YAC’s Community Legal Education Officer Katrina Jefferson clearly states a view that many of the behaviours with which these young people are charged would be dealt with in an entirely different manner were those young people living in family environments:

“The offences we see are commonly with regard to property damage rather than harm to a person. This is reflective of the statistics in relation to youth offending overall. For example a young person in out of home care was charged with “possession of tainted property” because they had matches in their possession and they were under 18. In such cases if a young person doesn’t have a lawyer they often admit to the charges and then have a criminal history for a minor offence and this is on the record for police and the Childrens Court. It is also important to note that if a court decides to formally convict a young person of an offence, the record of that offence stays with them when they become an adult – which is 17 in the criminal justice system in Queensland. We are the only Australian jurisdiction which does not include 17 year olds in the youth justice system”.

Being charged with crimes and subsequent involvement with criminal justice issues has significant impacts on the wellbeing of children and young people already vulnerable due to trauma and a range of complex life experiences and circumstances. Limited understanding of the charges and subsequent consequences further exacerbates their vulnerability. Criminal justice matters are often long and protracted and charges laid against young people can be excessive in light of the actuality of behaviours demonstrated.

A case example: YAC’s client was a young man living in residential care. He was charged, along with another resident, as a result of allegations of damage to a security screen and a door at his residence after attempting to obtain food. The other resident had taken a car belonging to the residential facility and driven it round the block. The YAC client was charged with a further offence of “unlawful use of a motor vehicle” because he was a passenger in the vehicle. He had not been involved with the police before this. The YAC lawyers advised the young person that they believed that the particular charges brought did not appropriately reflect the criminality of his behaviour (being too severe for the circumstances). Extensive submissions were sent to the police in relation to the matters but were rejected. Eventually some charges were discontinued and others reduced to more appropriate simple (lower level) offences. As a result, the client was able to agree that he had committed these offences and indicated that he would like the opportunity to show that he was sorry. The magistrate adjourned the matters to allow him to make a formal apology and the young man also made a craft piece for the house by way of reconciliation. The young person was supported by YAC’s Youth Support Advocate in relation to this. The magistrate read letters confirming the client’s apology and the efforts that he had made to remedy his actions and agreed that it was a matter where police should have cautioned him taking into account his lack of previous involvement with the police. Due to the need to make submissions and the delay for the apology it took about 8 months from the time the events happened for the court case to be finalised.

The issue of criminal convictions also impacts young people transitioning from out of home care to independence. Once they turn 18 years of age if they wish to continue residing in their foster placement they require a blue card if there are children under 18 on the premises. Even though most offending behaviours consist of minor offences, such criminal histories can lead to the loss of a stable home environment for young people in this tenuous position if prior offences lead to a blue card being denied.

YAC is also concerned about children and young people being charged with child pornography for peer to peer sexting. One such matter involved a 13 year old living in out of home care who was charged with child pornography for sending a picture of herself to her 14 year old boyfriend. This is a particular concern as child pornography is regarded very seriously. Such a conviction risks a young person being placed on the state and national sex offender registers. Such consequences are detrimental to young people who require guidance and support as opposed to punitive and long lasting impacts of impulsive, misguided or coerced behaviours.

YAC advocated on behalf of the 13 year old that the legislation was intended to protect young people, not criminalise them, and that this is particularly so when the offender is, in fact, the victim. Furthermore, YAC asserted that such charges were neither in the public interest nor in the interests of the young person concerned. The police withdrew the charges in the case of the 13 year old but not until there had been significant advocacy and discussion.

This is just one example of sexting type matters which have come to YAC's attention. YAC is seeking a prosecution policy that young people will not be charged in such instances while it lobbies for the legislation to be amended to prevent this happening.

For professionals and carers working with children and young people in out of home care, young people’s pain based behaviours together with the complexities that children and young people face mean that their roles are significant and challenging. It is important that everyone working in the child protection system understands the nature of trauma based behaviours and are supported to respond to such behaviours in a compassionate and therapeutic manner. This includes possessing a broad understanding of the ramifications of criminal charges when young people behave inappropriately from time to time. There are many avenues that need to be identified and accessed to genuinely address behaviours that are of concern with the involvement of the Queensland Police Service should only be utilised as a last possible option in extreme circumstances.

Katrina Jefferson is cognisant of the difficult position that those providing care to children and young people living in out of home care are in and the enormous challenges they face on a day to day basis. She is clear that an improved understanding of the impact of criminal charges on young people will lead to out of home care providers working differently: “The reality is that these young people have been deemed to be in need of protection and any response to their behaviour has to be viewed through the prism of trauma and their life experiences. YAC is prepared to walk alongside any person or organisation providing support to children and young people including those living in out of home care”.

YAC is able to offer this support either on a case by case basis, through individual advice or advocacy or via legal education and training. YAC’s Youth Support Advocate is experienced in supporting young people transitioning to independence.

For those who work with children and young people, YAC delivers the specialised Laying Down the Law training package which is suitable for counsellors, youth workers, residential care workers, social workers, carers and educators. Katrina Jefferson reminisces that: “The need for expertise in this area and the complex legal issues which workers have to navigate is precisely the reason YAC established this 2 day training program”.

This training aims to give participants a better understanding of:

  • the law and legal processes in the context of the criminal law and the youth justice system
  • the law and legal processes in the context of child protection laws and the system
  • the law of confidentiality and legal responsibilities including duty of care/negligence
  • the choices/decisions which may be faced by workers and young people – Including a decision making framework which identifies: how and when the law is relevant in decision making, the relevance of the United Nations Convention of the Rights of the Child and when and how to better support young people who are involved in legal processes (including police interviews and court proceedings)

YAC’s website also exhibits a wealth of information for young people, professionals, parents and carers about the law as it pertains to children and young people. For further information on the Youth Advocacy Centre’s services and training such as Laying Down the Law click here