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New reports urge improvements to youth justice systems nationwide

Dechlan Brennan -

Better mental health and disability assessments, supporting families and parents, and developing a network of culturally supportive activities and relationships are some of the improvements that could be implemented into the youth criminal justice system, two new reports found.

The Australian Institute of Criminology released two Monash University-led reports on Tuesday, presenting some of the most in-depth Australian research to date about children aged 10-13 who have been in contact with the criminal justice system, and arguing some responses in the system are found to offer "little therapeutic or developmental benefit."

Drawing on data from the national criminal justice statistics, Victoria Police and Victorian Children's Court, the research highlighted high rates of early adversity and trauma among children who had been involved in the justice system from an early age. Furthermore, contrary to some media reports and political commentary, the reports found a significant number of the children were non-violent.

The sample comprised relatively few 10- and 11-year-olds, while boys and Aboriginal and Torres Strait Islander children were disproportionately represented. Most alleged offending was non-violent (71 per cent), especially among 10-year-olds (82 per cent).

"The findings indicate that the alleged and proven offending of 10–13-year-olds is predominantly non-violent and time-limited, and this is particularly the case for younger children in this cohort," the report said.

"Current responses to 10–13-year-old children with alleged offending continue to criminalise this group—directly and indirectly—with little therapeutic or developmental benefit."

Study lead and senior lecturer and researcher at Monash University department of social work, Dr Susan Baidawi, highlighted a trend of children who entered the justice system having already been a victim of violence or were involved in child protection.

"The research found that one half of all 10 to 13-year-old children with police contact for alleged offending had a prior intervention order, usually indicating they were victim-survivors of family violence, and three-quarters of all 10 to 13-year-old children who underwent criminal capacity (doli incapax) assessments at the statewide Children's Court Clinic had involvement with the state's child protection service," Dr Baidawi said.

Doli incapax, a principle of youth justice that argues to be responsible for offending, a child aged less than 14 years at the time of offending must understand that their actions are 'seriously wrong' rather than merely 'naughty or mischievous.'

The report found 60 per cent of 10 to 13-year-old children undergoing doli incapax assessments had a diagnosed psychiatric disorder, whilst 11 per cent had a diagnosed intellectual disability or acquired brain injury and 29 per cent had multiple psychiatric and disability-related diagnoses.

"Despite a considerable level of apparent need, there was little evidence of engagement with clinical or therapeutic services among this group," the report stated.

Doli incpax was critiqued in the report, finding the presumption should be applied, interpreted and recorded in a more consistent and rigorous manner.

"Doli is very inconsistent," Dr Baidawi told National Indigenous Times.

"There is a huge risk of some people having it applied in law and some people not; it is very poorly understood."

Study lead Dr Susan Baidawi (Image: Monash University)

Dr Baidawi noted opponents to raising the age of criminal consent pointed to the presumption as reason to maintain the status quo.However, with its current inconsistent implementation, she noted this is making it "null and void."

The findings outlined a distinct split in children facing the criminal justice system between recidivist alleged offenders, and children who did not offend in the period after their first alleged infraction.

"Half of 10–13-year-old children (48.8 per cent) had no further alleged offending in the following two years, and 68 per cent had no violent alleged offending in the following two years," it stated.

"That said, around 20 per cent of children had more than 10 police incidents (charges occurring on the same day) in the two years following their index matter.

"These findings indicate that most offending of 10 to 13-year-olds is neither violent nor enduring,

while a smaller proportion have more violent behaviour, and more repeated police and justice system contact."

The report suggests children with early offending behaviours could be better-supported through justice reinvestment, especially towards trauma-informed approaches that focus on the child first and foremost.

Some professionals outlined the option of court-mandated therapeutic treatment orders being used as an option as a response to more serious or violent behaviours. This would see treatment delivered through a community-based service, with forensic expertise. The study concluded with a note that the current responses to early offending have resulted in "substantial missed opportunities" to help children; only continuing to expose them to the criminal justice system offering "little therapeutic benefit."

"We can't say we are incarcerating children as a last resort if we are not putting the resources in place to keep the children away," Dr Baidawi said.

"What we are seeing is the justice system picking up the failings of social and family support systems. These kids have had to learn to survive in violent circumstances…by putting them into custody it's just another violent circumstance for them to survive."

Despite the findings, Dr Baidawi says she can see some movement forward, with a number of jurisdictions beginning to move towards the full prevention of incarceration for children under 14 years of age.

Victoria has pledged to raise the age of criminal responsibility to 12 by the end of 2025, and 14 by 2027, with a new alternative service model being designed to consider a range of early intervention and rehabilitative support services to help children and young people.

Tasmania has said they will apply a therapeutic approach in raising the age of criminal responsibility to 14 by 2029, with the ACT committing to it by mid 2025.

"There is a better understanding of the need to implement therapeutic responses nowadays," Dr Baidawi said.

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