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New research shows "crisis" connection between out-of-home care and incarceration

Jess Whaler -

New research demonstrates a clear link between out of home care and incarceration, finding evidence of systemic racism, a lack of visibility of people who have been in care, and an inability for governments to identify and resolve problems.

Following 11 years of research and an in-depth analysis of out of home care and involvement in the criminal justice system, Professor Alison Gerard weighed into the debate with a recent publication with colleagues Andrew McGrath, Emma Colvin and Annette Gainsford: 'Children, Care and Crime Trauma and Transformation'.

A Professor in Law and Criminology at the University of Canberra, Professor Gerard became aware of the high number of young people in residential care being referred to police and becoming involved in the criminal justice system through a community partner, sparking her research for 'Children, Care and Crime Trauma and Transformation'. Focussed on group home experiences, her research found that within residential care settings, unnecessary criminalisation was occurring.

"It struck me as odd that agencies who are chiefly responsible for providing care to children on behalf of the state, would be engaging in behaviours that heightened exposure of vulnerable children to the criminal justice system," she told National Indigenous Times.

"Connecting current practices with the historical context of forced removal of Aboriginal children from families and communities, and drawing attention to the many recommendations that have gone unimplemented, made me passionate about bringing accountability and monitoring to these realities."

During a recent address Professor Gerard emphasised Australia is still operating in a colonial environment with a juvenile justice system built on a sense of hopelessness, and not utilising a strengths-based approach.

She said residential care settings which are ostensibly there to protect children are actually causing them harm.

'Children, Care and Crime Trauma and Transformation' highlights numerous areas for improvement.

"When children need to appear in court, sometimes they have no one there. There is movement to have at least someone from residential care attend with the children, but this is still not a requirement," Professor Gerard said.

Professor Alison Gerard. Image: Supplied.

Professor Gerard's research draws a connection between the number of First Nations children in out of home care and the criminal justice system, with a stark overrepresentation in both.

She believes the parallels are due to systemic racism, a lack of visibility of people who have been in protective care and an inability for governments to implement recommendations and legal policy.

The research also found that due to the pace of the children's court, it is difficult to get acknowledgement of cultural identity, which leads to cultural incompetency.

The research noted a dearth of quality information about care-experience being presented to NSW Children's Court Magistrates, including advice from Indigenous stakeholders. Other findings included a gendered impact of adverse childhood experiences with girls in care being more likely to experience adversity such as assault, and also more prone to self-harm.

Professor Gerard expressed concern that the ACT has the highest recidivism rates in Australia.

"We want to stop people from going into the criminal justice system in the first place. Clearly the ACT has some real problems as far as the over representation of Indigenous people in custody and in out of home care."

The new publication provides strong evidence to suggest that the children's court is not well-placed to prioritise the complex needs of children in care who become involved with the criminal justice system.

"Whilst not universal, our research participants described residential care as mayhem. Generally, in these homes you have staff that haven't had adequate training and they are on minimum wage. These are the people looking after our most vulnerable children, many with complex needs. Often you have people who are placed there as a last resort, but sometimes it's their first placement," she said.

"You have poorly trained staff who have been noted as being culturally incompetent. When issues arise you have them calling the police, which disrupts the whole home and causes tension with police as they get frustrated as they are being repeatedly called to the residential care home. We need to dissuade the police from being involved. You have a conveyer belt to the criminal justice system, when it should be a last resort."

The research also found that for those with care experience, children who were able to find stable placements and share in positive experiences were provided some protection against violent behaviour. Cultural connections were also critical to well-being.

"As an academic I am excited by the role that legal education can play in inoculating against this crisis, in fulfilment of the recommendations from the Royal Commission. I think there is power to influence change as professionals, communities, and individuals. This is a crisis," Professor Gerard said.

The Law and Criminology expert said multiple solutions to the crisis lie in giving power and self determination to First Nations communities, and for the broader Australia to take responsibility "in any way that we can, including by supporting Truth-telling, Treaty and reparations".

A spokesperson for the ACT Government said it "recognises Aboriginal and Torres Strait Islander children continue to be significantly over-represented in the child protection system and acknowledges this is unacceptable".

"Supporting Aboriginal and Torres Strait Islander children to grow up safely in their families and communities is a core focus of the ACT Government," the spokesperson said.

"In 2017, the ACT Government commissioned the Our Booris, Our Way review – a wholly Aboriginal and Torres Strait Islander led and driven review of the experiences of children, young people and their families in their interaction with the child and youth protection system. The Government continues to work with the Our Booris, Our Way Implementation Oversight Committee to implement the recommendations from this review. While we recognise the legitimate frustration that implementation has taken longer than anyone would have wished, the recommendations are now well embedded into broader service reform processes and many have been completed or are well underway.

"Systemic change takes time and will only be realised through strong collaboration, transparency and accountability by all governments. The ACT Government acknowledges there is more work to do and is committed to improving services and policies to ensure we strengthen families and keep children and young people safe, strong and connected."

The spokesperson said that in addition to the implementation of Our Booris, Our Way, this work includes: progressing the establishment of an independent statutory oversight body, an Aboriginal and Torres Strait Islander Children and Young People Commissioner to advocate for Aboriginal and Torres Strait Islander children and young people in the ACT, both individually and at a systemic level, to promote their rights and wellbeing; Delivering the ACT strategy for strengthening families and keeping children and young people safe – Next Steps for Our Kids 2022-2030; modernising the Children and Young People Act 2008; commissioning a new therapeutic residential care provider with substantial experience in providing intensive therapeutic care to better support the small number of young people who are unable to live in family-based care (kinship or foster care); and raising the minimum age of criminal responsibility and providing the targeted supports to address the needs of children and young people who engage in harmful behaviours to address these issues, create new life trajectories, reduce recidivism and support the wellbeing of children and young people and the community.

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