Aboriginal children in Western Australia are being kept in detention despite being granted bail and also remanded in custody while never charged “all the time”, according to lawyer Dana Levitt.

Ms Levitt of Levitt Robinson Solicitors, who is working on a prospective class action for current and former Banksia Hill detention centre detainees, told the National Indigenous Times that she knows “of kids who spent time locked up for no reason whatsoever”, having never been charged, as well as children who remained incarcerated after being granted bail.

“It happens all the time because no responsible adult can sign their leave forms,” she said.

“Pre-trial detention ought to be a mechanism for pre-trial security only. Despite this, children in the Department’s care frequently remain in detention on remand, even where they have been granted conditional bail by the Court.

“The criminogenic effects of exposure to detention are well known and include disaffection caused by lack of liberty in the absence of due process or a finding of guilt, removal from family and community life, psycho-social isolation, exposure to criminogenic factors in custody, and disruption to school attendance.

“The juvenile justice system is becoming less effective in achieving the objectives for the treatment of young people set out in the Young Offenders Act, as fewer juveniles are being directed away from court, more juveniles are being detained on remand, and police are having difficulty finding adults to supervise their young people while they are out on bail.

“Fewer young people who have met police have been kept out of the court system, and this cannot be fully explained by trends in juvenile crime. Police referrals to juvenile justice teams, an important rehabilitation and restorative justice arrangement, have also been on the decline, along with the use of cautions,” she said.

Ms Levitt noted that in 2020, an Aboriginal person under 18 in Western Australia was 34 times more likely to be in custody than a non-Indigenous person under 18.

Megan Krakouer of the National Suicide Prevention & Trauma Recovery Project, who is spearheading the prospective class action alongside long-time Project organiser Gerry Georgatos, told the National Indigenous Times the responsibility for most of the children in this situation lies with the Department of Child Protection.

“The Department has a lot to answer for… in this setting, it has been atrocious that they can’t place these children in homes, and therefore leave them in detention. It has been going on for years.

“If the children who are in state care raise concerns about inhumane treatment and about their rights being violated, Child Protection needs to take that up with Corrective Services.”

Ms Krakouer said the issue of supporting children once they do leave detention also remained a significant problem.

“Many of them are placed in group homes, which they do not find therapeutic at all, then they run from those places, and end up coming back into Banksia Hill. Only 17% of the Department’s budget is spent on family support. The real issue is what kind of care, what kind of therapeutic support are they having once released from Banksia Hill.

“There’s a family I know… Three of the kids have been in and out of Banksia Hill. The parents suicided within a year of each other. The trauma and hurt of these kids – they need care to address their issues. The service the Department is providing these children is failing in the most catastrophic manner… a lot of the children leave that place and go to group homes, and that setting is setting them up for future incarceration and adult incarceration.

“We are talking about the most marginalised and vulnerable kids… The government needs to get their act together, because 70% of these kids are going on to adult incarceration. What they need is a therapeutic model… Support these children otherwise the revolving door, in and out of detention, will not stop.”

Mr Georgatos said “the courts in one sense are trying to play their part by referring to bail, but the circumstances into which children can be released don’t exist”.

“They don’t have the safety nets to support them, and then they re-offend… The missing thing that needs to be invested in and expedited, if we are going to grant bail to these children and not [send them] into circumstances in which they will be transient or homeless, is to actually invest in models where we have intensive psycho-social support which begins on the inside (of the detention centre) and continues on the outside,” he said.

Guardian Australia recently reported that the Aboriginal Legal Service of Western Australia wrote to Western Australia’s Minister for Children, Simone McGurk, as well as the Attorney General and the Department of Communities this month saying it had “grave concerns” the Department had failed in its duty to find suitable accommodation for children in the criminal justice system.

It was reported that ALSWA had contacted the Department of Communities about eight children since June 2019 who had been detained in Banksia Hill despite being granted bail, because suitable accommodation could not be found. In one case, a 14-year-old boy with only one charge on his criminal record was held for three weeks despite being granted bail at his first appearance before the court because the Department did not sign his bail undertaking.

A spokesperson for the Department told Guardian Australia there could sometimes be a delay between a child being granted bail and being released from custody, to arrange appropriate housing and transport.

“There is often an expectation that once a child or young person is granted bail, they are released from custody immediately… A range of factors, including transport arrangements and care planning, must be coordinated before Communities can safely provide bail for children in care – both for the child or young person and the broader community.”

The Department of Communities spokesperson said that in the case of the 14-year-old boy, it had tried to maintain the child’s previous foster placement, but “there are occasions where the level of support required may not be available at the point that bail is granted and Communities cannot adequately ensure the safety of the young person or the community”.

Mr Georgatos told National Indigenous Times that while responding to the crisis was not only a matter for Corrective Services, the Department “could certainly do more on the inside”.

“And on the outside with parole; it should not be just about breaches; it should be about support. We don’t need another inquiry to tell us this. There is no safety net.

“All the things Labor was arguing for in opposition in 2012 they should invest in immediately in government… They should not delay in investing to get the personnel they need to stop these kids from ending up on the inside again and again,” he said.

By Giovanni Torre