International research shows that children and young people with care experience are often over-represented within the criminal justice system. The reasons for this over-represenation are complex and include the fact that the care experience itself may be "criminogenic", that is, a factor that contributes to offending.
One example of this includes residential care homes calling the police to deal with behavioural issues that would have been dealt with without recourse to contacting the gardaí in the case of a child living in the family home. Another relates to the issue of the adequacy of supports available to young people as they transition from the care system.
Again, international research shows that in a wider context of extended youth transitions to adulthood – evident in the older age at which young people typically move from the family home to independent living – young people leaving care face far more rapid transitions, sometimes in the absence of critical supports. This may make them more vulnerable to a range of negative outcomes, including involvement in the criminal justice system.
What we are seeing is a disproportionate representation of children from care at the 'higher' end of the youth justice system
In some countries, concerns regarding the over-representation of children with care experience in the criminal justice system have led to campaigns and policy initiatives aimed at tackling the problem.
However, to date in Ireland this issue has received limited attention despite the fact that there is evidence that a disproportionate number of children from care backgrounds are remanded or committed to detention every year.
Data produced by the Oberstown Children Detention Campus, for instance, shows that in 2018 more than a third of the population detained had previously been in care or had significant contact with Tusla as a result of child-protection and welfare concerns.
These young people often have complex needs and sometimes display difficult behaviours leading to contact with the gardaí and escalation through the system
Within the youth justice system the detention of a child is defined as a “measure of last resort” and the vast majority of children who offend are dealt with through the Garda youth diversion programme, meaning that they are placed under Garda supervision and diverted from court.
Therefore, only a very small proportion of children who offend are subject to a court sentence and far fewer end up in detention. What we are seeing, therefore, is a disproportionate representation of children from care at the "higher" end of the youth justice system.
A recent study commissioned by the Irish Penal Reform Trust found that more than 90 per cent of children in care in Ireland are placed in foster care and do not have any contact with the gardaí. A far smaller proportion of children are placed in residential care (about 6 per cent), in some cases in their late teenage years or following previous placement breakdowns.
Very often, these young people have complex needs related to prior histories of trauma. In these contexts young people sometimes display difficult behaviours leading to contact with the gardaí, criminal charges and escalation through the system.
The more complex a young person's needs, the less likely they are to receive services they require, involvement with the criminal justice system becomes the default
Furthermore, some young people in care are moved to placements in different parts of the country meaning services, such as child and adolescent mental health services, which are often based on local-delivery models, are not responsive to their needs.
One striking observation arising from the research is that in the face of complexity, services retreat. In other words, the more complex a young person’s needs, the less likely they are to receive the services they require. In this situation involvement with the criminal justice system becomes the default response.
Problematically, there is no national policy governing this area. This means that practice across the country varies and is often determined by relationships between children’s residential units and local gardaí. There is no joint protocol between Tusla and An Garda Síochána relating to criminal justice contact for children in care.
If we are to learn from the mistakes of the past in relation to our response to children in the care of the State, there are clear needs to address these gaps urgently
A further issue of concern is that the main agencies – the Garda and Tusla – do not systematically collect data on the extent to which young people in care come into contact with the criminal justice system. Consequently, while we know this is an area of concern it is not possible to establish an accurate picture about the extent of the problem.
The problem of data deficits extends to when children leave care and represents a serious gap in our knowledge about outcomes for children in care. Following the publication of the Commission to Inquire into Child Abuse (the Ryan report) almost a decade ago, the government made a commitment to undertaking a longitudinal study that would track young people through and out of the care system. However, to date this action has not been implemented.
The need for information on outcomes for children and young people in care is pressing as it would enable us to benchmark and improve the services provided. Issues of interagency working, data deficiencies and adequate monitoring have been raised in numerous reports over many years. If we are to learn from the mistakes of the past in relation to our response to children in the care of the State, there are clear needs to address these gaps urgently.
Dr Nicola Carr is associate professor in criminology in the University of Nottingham and Dr Paula Mayock is assistant professor in youth studies at Trinity College Dublin. They are authors of the report Care and Justice: Children and Young People in Care and Contact with the Criminal Justice System