'Thinking Through Child First Youth Justice'

Posted by NAYJ on Feb 2, 2021

Ben Byrne, here considers what is meant by 'child first youth justice'.

The Youth Justice Board’s adoption of the child first principle, drawing from the ‘children first offender second’ academic discourse, marks a significant opportunity to reconsider and reform our responses to children who come into conflict with the law.

The Case for Change

Children in the justice system have always been viewed as ‘non-children’, undeserving of the rights and entitlements the law confers on other children. Until relatively recently the Children Act 1989 was not considered to apply to children in custody and the provisions of the United Nation Convention on the Rights of the Child are still not routinely observed in custodial settings and other parts of the youth justice system. Re-conceptualising ‘young offenders’ through a child first lens, as the YJB is now encouraging, challenges the ways of responding that have grown up in our legal and professional systems. This includes but is not limited to:

• Court  structures and process that are barely / poorly adapted from the adult criminal justice system and entirely separate from the family court.
• A children’s custodial estate which is an adjunct to the adult prison system, where conditions are routinely criticised by inspectors as not supporting the health, education and welfare needs of children.
• An age of criminal responsibility which is out of line with international standards.
• Centrally prescribed frameworks for assessment and planning, which take as their starting point the offence and mark out the child because of their offending, separating them off from other children in need.
• Approaches that treat children primarily as ‘offenders’, meaning we fail to see the child and their safeguarding needs. Such a response has a particularly damaging impact for Black and minority ethnic children, amplifying racial disparities, meaning disproportionate numbers of minority ethnic children, and especially Black children, experience the harshest elements of the justice system.
• Local services which work only with ‘offenders’ and assess and record on separate systems from other children in receipt of local authority interventions, fulfilling an assessment and planning framework which is unwieldy, regressive and un-child friendly.

A New Context

While there has been success in managing down the youth justice system over the last decade, those children who remain have more complex needs, have childhoods filled with adversity and typically display levels of vulnerability that bring them to the attention of safeguarding services. At the same time as the youth justice system has been contracting to focus on a more acute cohort, other children’s services have been re-focused on (largely) the same set of children, through the attention brought by adolescent and contextual safeguarding, child exploitation and associated concerns in regard to the impacts of serious violence. In short, there is such an overlap between the YJ cohort and that of other children’s services, that the maintenance of parallel operating systems builds-in inefficiency, is damaging to continuity of relationships, and ultimately provides gaps for children (and information about children) to fall between. The worst impacts of this dual system can be seen in numerous adolescent serious case reviews.

Current youth justice arrangements are an ill-fit with both evidenced-informed, child first practice and the aspirations of progressive children’s services, with their renewed focus on vulnerable adolescents and the need to organise services around children (not vice versa) and  enhance the opportunities to work through trusted relationships.

Targets for Change

If we take seriously the evidence from child development and criminology, and pursue a principled approach to promoting the best interests of children, we should consider a re-design of the current youth justice arrangements. The adoption of the child first guiding principle provides a catalyst for this change, which any of the key stakeholders in the youth justice system could choose to advance.

Central government has the greatest levers through the opportunity to legislate to raise the age of criminal responsibility (ten years old is far from compatible with a child first approach) and to restrict the use of remand and sentence to custody, to ensure this is genuinely a last resort. Government is also responsible for the custodial facilities children experience and these should first and foremost be places of care, with the attendant children’s homes regulations applied. A child first approach also aligns better with inspection led by Ofsted, the children’s inspectorate. Undoubtedly there is knowledge and specialist expertise from HMI Probation, Custody and Constabulary which can and should support inspection of arrangements for children but, if we are really committed to a child first approach, these should not be the lead inspectorates. Similarly, if we believe children in trouble should be seen as children first and offenders second, then there is a compelling argument for the Department of Education, the children’s department, to lead for children even when their behaviour brings them into conflict with the criminal law.

The Youth Justice Board determines the framework for assessment and planning for children in the justice system and sets the requirements for recording and reporting of activity undertaken with these children. At a local level this requires a separate youth offending recording and assessment framework, which in practice means it is extremely hard to integrate with other children and young people’s services. A child first response requires services to be organised around the needs of the child and this should encourage the YJB to review its adherence to a separate recording and assessment framework for children in trouble. This change would allow local authorities greater scope to re-design their services to be child first and would address the gaps and duplication described above.

At a local authority level there are examples of excellent attempts to integrate youth justice into wider adolescent services, however, even those who have had some success recognise that it is incredibly difficult to achieve a child first youth justice response in the current context. It remains an inefficient workaround, and it is achieved in spite of the YJB and HMIP requirements, not because of them. Many would also question how welcoming wider children’s services are of the ‘YOT kids’ and there remain significant cultural and practical barriers to ensuring children with youth justice involvement can be assured a high quality children’s services response. More than a ‘lift and shift’ of youth justice into children’s services is therefore required. Free from the constraints of a separate national assessment, reporting and inspection framework, local authorities and their partners could re-imagine a more integrated and evidence-informed approach, rooted in continuity of relationships and organised around the needs of children, which provides for a range of vulnerable adolescents.

What next?

Adopting the child first principle is an important declaration by the YJB. This piece identifies some of the far-reaching implications of a genuine commitment to child first reforms; it is still to be seen if these will be embraced by YJB or central government. While developing a child first system for children in trouble will be a long term project, it needs a shared vision for the desired end state as its starting point, and a coalition between a range of practitioners and policy makers if it is to become a reality. All actors, whether at an individual or organisational level, can choose to be leaders of this change and start to make child first a reality.