Children, Families, Young People and the Criminal Justice System

The family is not guilty; anyone can have a family member go to prison.

Families Outside website: http://www.familiesoutside.org.uk/

  • Latest publication from the Scottish prison Service on young offenders
  • Latest publication from Scottish Prison Service on prisoners who have been in care as looked after children

1. Youth Justice

There has long been concern over the sharp boundary between the juvenile justice system in Scotland (The Children’s Hearings) and the adult justice system. Unlike most other countries, this boundary is at the age of 16. Commenting on this, the Scottish Prisons Commission pointed out in their report Scotland’s Choice (July 2008) that Scotland imprisons an unusually high number of under 18’s in comparison with European neighbours. The most recent prison statistics are set out in the background note below.

 

In view of the importance of this issue, the Scottish Consortium on Crime and Criminal Justice held a seminar at Sacro National Office, 29 Albany Street, Edinburgh on Tuesday 31 May 2011 to discuss the scope for recent developments in the ‘Whole System Approach to Youth Justice’ to improve the situation through the availability and use of services to prevent the unnecessary use of custody and secure accommodation. The purpose of the seminar was to explore ways of reducing the use of custody while still tackling the causes of offending in an effective way a copy of the seminar report is here:

Youth Justice Seminar Report

The seminar drew in particular on the experience of work in Aberdeen which is described more fully below:

BACKGROUND

 

The following material was provided as background information in advance of the seminar

 

Each year about 10,000 16 and 17 year olds end up in the criminal justice system and the courts, with limited consideration given to the positive benefits of diversion. Significant numbers end up in custody. The latest figures for young offenders up to 21 appear in a table at the end of this note.

 

About 88% of 16 to 20 year olds released from custody are reconvicted within 2 years with 45% receiving further custodial sentences.

As the Scottish Prisons Commission commented, “when 16 and 17 year olds are sentenced to detention, not only are their family ties, educational chances and job prospects damaged, they are forced to form relationships and, no doubt, learn from more experienced offenders.”

Unnecessary use of prison is liable to build up an institutionalised group of young people who have not established themselves in society and are liable to reoffend and return to custody. The use of prison should be restricted to offending which has a strong impact on public safety and where public protection from serious harm is the key objective.

The nationally agreed objectives of the Young People Who Offend strand of the Reducing Reoffending Programme (RRP) are to:

  • Develop and implement a process that provides decision makers access to the information required to effectively support the care and management of young people who offend or present a high risk through the children’s hearings/criminal justice system.
  • Develop and introduce a streamlined and effective framework that identifies and diverts under 18s whose offending or risk taking behaviour can be effectively managed outside: (a) children’s hearings; (b) the criminal justice system; and (c) custody (secure care and prison).
  • Develop and introduce a range of evidence based early and effective approaches and programmes for under 18’s who have offended or present a risk of serious harm so as to lead to a reduction in re-offending rates.
  • Develop and support the implementation of processes to enable a consistent standard of risk assessment and risk management of all young people under 18 at high risk of offending or reoffending; to support shared understanding of risk and need across services for children and adults.
  • Develop and support the implementation of processes and interventions for under 18s who are (a) dealt with in the courts and (b) detained in prison, to better meet their age and stage of development in line with the principles of United Nations Convention on the Rights of the Child.

 

The aim of the Aberdeen Youth Justice Development Programme replicates national work under the RRP to reduce reoffending by young people (under 18) through appropriate interventions.

This is designed to be achieved by working with all stakeholders to:

  • develop integrated processes and services across children’s and adults systems;
  • increase intervention opportunities for young people  in place of formal measures (children’s hearing and prosecution); and
  • increase opportunities for community alternatives to secure care and custody designed for young people.

 

The programme has reviewed the current systems and responses in place for dealing with the offending behaviour of young people under the age of 18 in Aberdeen who are dealt with by the police, through the children’s hearings, Procurator Fiscal or in the courts.

The whole system approach

 

The whole system approach is intended to ensure that the right service is provided by the right person or agency at the right time for young people. The approach is taken across the 8 to 18 year old spectrum and ensures that a consistent approach based on years of evidence of what is effective is delivered to support young people who are responsible for offending and/or who have been harmed.  The whole system approach keeps young people out of statutory systems wherever possible and appropriate.

The whole system approach looks at three work streams, Early and Effective Intervention where young people are supported at the earliest appropriate stage. Effective Court Case Management, to speed up the court process where young people have to be prosecuted, supporting them through the system with the aid of a court support worker.  Integrated services where all partners including both statutory and third sector partners find new ways of working together focussing on positive outcomes for young people and providing the appropriate mix of services based on young people’s individual needs.  This has also led to provision of an intensive support service.

In support of Aberdeen’s Integrated Children’s Services Plan, consideration of both offence and non offence referrals has now been brought into one single process that includes pre-referral screening (PRS), comprising representatives from the Police, Social Work, Education and Health, with additional representation from other organisations where appropriate. Where Diversion from Prosecution is being considered the Procurator Fiscal also attends. The aim is to look at all the aspects of the offending and the offender in a coordinated way and to arrive at the most effective course (which may well not be prosecution but some form of diversion directly addressing the offending).

What we can determine from the introduction of PRS so far?

Comparison between 2007 and 2010 shows:

The number of Reports submitted to the Reporter has fallen from 715 to 443, down by 272, a reduction of 38%.

The number of Warning Letters has risen from 414 to 591, an increase of 177 (42.8%).

During 2007, 44.9% of all Crime Files resulted in a report to the Children’s Reporter.  During 2010, this has dropped to 34.5%.

There were 13 young people diverted from prosecution in 2009/10 and in the first eleven months of 2010/11 109 young people were diverted form prosecution through PRS.

Scottish Prison Population

 

Average daily  population as at 30 June 2009

Age                  Male                            Female                         Total

16                      44                                2                                  49

17                    146                              13                                159

18                    248                                7                                255

19                    290                                8                                298

20                    320                              16                                336

21                    338                              10                                319

Receptions 2009 – 10

Age                  Male                            Female                         Total

16                      84                                5                                  89

17                    293                              30                                323

18                    541                              29                                570

19                    516                              32                                548

20                    585                              29                                614

Average daily population of Young Offender Institutions as at 30 June 2009

Polmont                        722

Perth                            79

Cornton Vale                  44

2. Dealing with children in trouble

 

In SCCCJ’s previous annual reviews in 2007 and 2008 we looked at the extent to which Scotland’s arrangements for dealing with children in trouble are within the framework set by the UN Convention on the Rights of the Child. While recognising that Scotland’s Children’s Hearing System is a progressive and child centred system quite different to that in England and Wales, we noted some significant concerns, particularly about the continued use of adult courts and prisons for under 18 year olds, and the age of criminal responsibility which, at eight years of age, is the lowest age in Europe.

On 3 October 2008 the UN Committee on the Rights of the Child issued a series of recommendations[1] setting out where they believed the UK was falling short of fully implementing the UNCRC. The merits of the Children’s Hearing system were recognised in a recommendation that ‘consideration be given to improving and adopting the welfare based system across the UK’. However, Scotland was again criticised for the failings identified above.

The response[2] of the Scottish Government was published in November 2009. This response recognises and commits to fulfilling Scotland’s duties as a signatory to the UNCRC. The response commits to end the use of unruly certificates to imprison under 16s, and to a legislative proposal to raise the age of prosecution – but not that of criminal responsibility – to the age of 12 years. This proposal is contained in the Criminal Justice and Licensing (Scotland) Bill currently before the Scottish Parliament, but not yet passed. The government’s response sets out a strategy to reduce the use of prison for 16 and 17 year olds through ‘the wider use of alternatives to custody including payback and restorative approaches’.

The response commits to improving and strengthening the hearings system while retaining its welfare base and principles. A Children’s Hearing Bill is expected to be laid before the Scottish Parliament early in 2010. However, an early draft of this legislation was withdrawn for redrafting after it aroused significant concern and criticism for complicating the system, and failing to understand the welfare rather than judicial nature of the hearings. The Scottish Government is to be commended for listening to the informed criticism and comment and for creating a more collaborative and constructive approach to the legislation.

However, it is disappointing that an opportunity for ‘joined up’ policy seems to have been missed. Two pieces of legislation, both of them dealing with aspects of youth justice, seem to have been developed quite separately and without an overarching philosophy, or strategy. Both the current Criminal Justice and Licensing (Scotland) Bill and the forthcoming Children’s Hearings Bill present opportunities for reform. The Criminal Justice and Licensing (Scotland) Bill seeks to curtail the ever growing prison population by ending the use of sentences under 6 months, and the Children Hearing Bill seeks to strengthen and improve the Hearings. But both Bills have somehow failed to take a golden opportunity to meet UNRC and HRA concerns and jointly to stem the flow of immature and disadvantaged boys into the prisons.

Some findings of the Edinburgh Youth Crime and Transitions Study[3], a longitudinal study following a cohort of all children moving into secondary school in Edinburgh in 1988, provide much useful material for joined up thinking. .

These include:

Of those ever referred on offence grounds to the Children’s Hearing System:

  • 55% have at least one criminal conviction (by age 22) compared with 10% of those with no hearing record
  • 13% have at least one period of detention (by age 22) compared with 0.4% of those with no hearing record – i.e. 33 times higher!

 

This demonstrates that the hearing system has an early opportunity to address the deeds and meet the needs of those who are likely to go on to offend as adults – but fails to change the course of their lives.  The study found that the key factors, adjusting for all other differences, that can predict transition from children’s hearings to adult system are:

That the child

  • Has been excluded from school by 3rd year of secondary school
  • An early history of police warning/charges
  • Being male

 

In evidence to Kilbrandon Now reconvened Inquiry[4] Professor Lesley McAra recommended that the Scottish government should either:

  • Expand children’s hearings system to include older children (i.e. take ALL 16 and 17 year olds out of the adult court system) or
  • Implement a reconstructed model of the youth court: to deal with all 16 and 17 year olds (not just fast-tracked ‘persistent offenders’ and not just summary cases); staffed by specialist sheriffs; based on an inquisitorial rather than adversarial model and one which promotes dialogue between the defender and the sheriff

 


[1] UNCRC Committee on the Rights of the Child, Forty-ninth session. Consideration of Reports submitted by States Parties under Article 44 of the Convention. Concluding observations United Kingdom of Great Britain and Northern Ireland (UN 2008).

[2] Scottish Government Full Response to the 2008 UNCRC Concluding Observations at ‘www.scotland.gov.uk/Publications/2009/10/28095627/0’

[3] Edinburgh Youth Crime and Transitions Study University of Edinburgh.  (More information about the Edinburgh Study at: www.law.ed.ac.uk/cls/esytc/)

[4] ‘Kilbrandon Now Inquiry Report and recommendations – Action for Children (NCH) 2003 and forthcoming 2009 Kilbrandon Now Revisited report (actionforchildren.org.uk). Kilbrandon Now’ event on 12 November 2009, hosted by Action for Children, a member of the Scottish Consortium on Crime and Criminal Justice.

3. The impact of imprisonment on families

 

Based on estimates from the available research and recent increases in the prison population, about 16,500 children in Scotland have a parent in prison on a given day, with just under 2,000 separated from a mother through imprisonment. What this means is that, every year in Scotland, more children experience a parent’s imprisonment than a parent’s divorce. However, the question of whether a prisoner has children is not routinely asked when someone goes into custody.

Prisoners’ families often suffer from the same types of problems in terms of poor health and social exclusion as prisoners. What they have in addition, however, is the impact of the imprisonment when they themselves have done nothing wrong. This includes:

  • Immediate effects: the research into impact on families shows difficulties at every stage of the criminal justice process. Recent work in the US, however, has identified witnessing an arrest as the most traumatic part of the process for children. The biggest fears for most children include loud noises, strangers, and separation from a parent.  When a parent is arrested, especially where this is a sudden event, where force is used, and particularly when children witness this, children will be terrified, not knowing when or if they will see their parent again. If the arrest is of the primary or indeed the sole carer, the likely level of trauma for children is potentially extreme
  • Loss of income: often the main wage-earner is the one in custody, benefits may be reduced, or the family may be left responsible to pay for debts or compensation
  • Loss of housing: a tenancy may have been in the name of the person now in prison – something which is more often the case with female offenders. A reduction of income may mean they cannot afford to stay where they are, or they may be targeted by neighbours, people connected with any victims, or the victims themselves
  • Anti-social behaviour by children in distress: this includes deterioration of performance at school, bed-wetting, and poor mental health.  Children of prisoners suffer from mental health problems up to three times the rate of other children. They are also at greater risk of substance misuse and of imprisonment themselves in later life. They are likely to have multiple care arrangements when a parent goes to prison, especially where a mother is imprisoned
  • Shame: this is crucial, as it is an important reason why families tend not to access any resources that may be available. They do not wish to identify themselves as people with a family member in prison, so they will not seek the help they need and are unlikely to tap into any support available in the community. Prisons can therefore become the only means of accessing families to ensure they have the support and information they need
  • Victimisation: families are often targeted by neighbours or by victims or victims’ families. Again, they have not been convicted themselves, but are targeted anyway
  • Difficulties with travel and transport: this in itself can be a reason families lose contact with someone in prison. A report by Families Outside in 2006 called ‘Do Not Pass Go’ showed that almost half of prisoners’ families in Scotland spend between five and twelve hours for a return journey to a prison for a visit. Costs can be prohibitive, yet only about half of families are aware of things like the financial support available through the Assisted Prison Visits Scheme

 

Basically imprisonment puts the entire family under tremendous stress. The impact of imprisonment affects many more people than the prisoner and the family can take on the characteristics of single parent families through poverty, unemployment, isolation, and deterioration in physical and mental health. These families are often already a socially excluded group, but the fact of imprisonment itself has a further negative effect on children and families.  Children of prisoners have a higher risk of future imprisonment and substance misuse, as well as higher risk of problems with physical and mental health.

A report in 2009 by the New Economics Foundation looking at the costs of women’s imprisonment summarised the main long-term costs incurred by children of imprisoned mothers. These included a greater likelihood of these children becoming ‘NEET’ (not in Education, Employment, or Training) and therefore having poorer long-term prospects. The report estimated costs for the UK of increased mental health problems alone as amounting to more than £17 million over a 10-year period.  It also highlighted the additional costs of formal care arrangements, future criminality and drug use. Prison does not necessarily cause these problems: children of prisoners are often living in difficult circumstances anyway, and these characteristics are very similar to the characteristics of looked after children. In saying this, many children are looked after because a parent is in prison. The relationship is complex, but a parent’s imprisonment undoubtedly exacerbates these problems.

Regressive behaviour is a common reaction from children, often showing up through deterioration in behaviour and performance in school. Interestingly, this type of behaviour is virtually identical to children who have suffered a bereavement, with ‘grief reactions’ such as anger and acting out, self-medication, isolation, and so on. The concept of ‘disenfranchised grief’ expresses clearly what prisoners’ families often go through, which is:

… the grief experienced by those who incur a loss that is not, or cannot be, openly acknowledged, publicly mourned or socially supported. (Doka 1995)  [1]

 

One mother equated her son’s imprisonment to a death, where she was left to clear out his flat, make arrangements for his bills and debts, assist with childcare arrangements, and so on. Multiple care arrangements are common when any parent goes to prison, but these are a particular problem when a mother goes to prison.

Finally, the question of what to tell the children causes tremendous stress.  Carers report that difficulties in knowing what to say to children when a family member goes to prison is one of the most stressful aspects for them. Parents and carers will often try to hide the imprisonment from children, saying ‘Mummy’s in hospital’ or ‘Daddy’s working away’, but children often realise the truth for themselves for example from other children at school or, as they get older, from reading the signs at the prison. Children often find out before they have had an opportunity to talk about it with their parents or to ask questions.  They in turn become afraid to discuss it and ‘play along’ with the family’s attempts to hide it from them.

Imprisonment of women has a particular impact on children and families.  In Scotland, only 17% of fathers looked after their children while the mother was in custody. Other research in the UK has put this figure ranging as low as 5% – 12%.  Children may go into formal care or, more commonly, into the care of another family member. This means they may have to move from house to house, depending on the length of the period of custody, and siblings may have to be separated.

Women are more likely than men to lose housing while in prison, because the tenancy is more likely to be in their name. This is particularly pertinent for women who are trying to regain custody of children upon release. If they have lost their housing, they will be re-housed in accommodation for single homeless people since they do not have custody of their children. They cannot then regain custody of their children until they have appropriate accommodation – yet they are not entitled to family accommodation until they have custody of their children.

Distance from home to women’s prisons is further on average. Scotland houses most of its female prisoners in a single establishment. The vast majority of families will have to travel considerable distances to maintain contact; where contact depends on the availability of social workers to transport children, this can complicate matters even further.

The impact on children is likely to be more extreme when a mother goes to prison since she is usually the longer term primary carer. Children of imprisoned mothers are therefore at the greatest risk of the psychological distress, behavioural problems, and subsequent involvement in the criminal justice system.

In his enquiry into a series of prison riots and disturbances in England and Wales in 1990 [2], Lord Justice Woolf described the strain on family ties as one of the most difficult consequences of incarceration and encouraged intervention to minimise such disruption:

The disruption of the inmate’s position within the family unit represents one of the most distressing aspects of imprisonment…. Enabling inmates, so far as possible, to stay in close and meaningful contact with the family is therefore an essential part of humane treatment There is every reason to believe that the nature of a prisoner’s relationship with his or her family will be an important factor in determining whether he or she will succeed in leading a useful and law-abiding life on return to the community.

International research shows rates of reoffending up to six times less for prisoners who maintain contact with their families. It also shows that about half of prisoners lose contact with their families as a direct result of being in prison. Arguably this loss of contact is even more likely when a woman goes to prison, with further distances to travel, multiple carers for children, and often impoverished circumstances for the families left behind.

Prison is a family experience.  The international guidance recognises the importance of the needs of families. Indeed, the UN Committee on the Rights of the Child highlights prisoners’ children as a group in particular need of support. The question is whether Scotland conforms to the requirement in the UN Convention on the Rights of the Child to take the children’s best interest as a primary consideration for any decision that affects them.


[1] Doka, K. J. (1995) “Disenfranchised grief.”  In L. A. De Spelderf and A. L. Strickland, eds., The Path Ahead.  Mountain View, CA: Mayfield, 271-275. quote on p 272 from earlier work Doka, K. J., ed. (1989) Disenfranchised Grief: Recognizing Hidden Sorrow. New York: Lexington Books.

[2] Prison Disturbances April 1990, Report of an Inquiry by Lord Justice Woolf (and Judge Stephen Tumin – part II), [Home Office], (February 1991), Cm. 1456,  London, HMSO.

 

Fifth Annual Rveiew on Crime and Justice – further information on the effects of imprisonment on families


The impact of imprisonment on families The 2010 report from the Consortium highlighted
the impact of imprisonment on children and families for the first time. Awareness of the extent
of this impact is gradually growing, with a family member’s imprisonment affecting families well
beyond the prison term.

In summary, families experience the immediate effects of arrest and imprisonment and it is
particularly traumatic where children and families witness this. Families may face a loss of income
through loss of the wage-earner, welfare benefits, costs of maintaining contact with the prisoner
or responsibility for debts and compensation.
Loss of housing is not unusual, particularly if the tenancy is in the name of the person in custody.
Children often experience a ‘grief response’, manifesting itself in poor school performance,
acting out, substance misuse or mental ill-health.
Children may be bullied and families targeted as a result of the offence, but shame and stigma are
likely to prevent families from seeking help with any of these difficulties.
The issues families face cross over a number of areas. This means that no one agency
has responsibility for them, which can make coordinated support for children and families
in this situation very difficult. Further, the Scottish Government has no specific statutory
responsibility to support families when someone goes to prison. In practice, more comprehensive
support therefore falls to the voluntary sector through organisations such as Families Outside,
Circle Scotland, the Lighthouse Foundation, Scottish Families Affected by Drugs, and HOPE Scotland.
In saying this, a number of significant discussions have taken place in the last year. An alliance of five
UK and Scottish national organisations (Action for Children, Barnardo’s, Children in Scotland,
Families Outside and Scotland’s Commissioner for Children and Young People) collaborated to
submit amendments to the Criminal Justice and Licensing Bill and to the Children’s Hearings
Bill to draw attention to the needs of children of offenders.
One amendment, for example, was for the courts to take into account the impact of their decisions on children, commensurate with
Article 3.1 of the UN Convention of the Rights of the Child. The South African Constitutional Court made such a ruling in the case of S v M in 2007.
Parliament rejected all of the proposed amendments. However, the amendments
attracted enough interest for a cross-party debate in Parliament on children affected
by imprisonment. This debate too had no measurable result but nevertheless attracted
attention to the issue, interestingly closing with a response from the Minister for Children and
Early Years, rather than from his Criminal Justice colleagues.
The debate around the use of prison visitors’ centres has become more prominent in recent
months. Unlike in England and Wales, where such centres have long been a required part of all newbuild
prisons, Scottish prisons have only three visitors’ centres, and the Scottish Prison Service
has taken a stance against developing more. HM Chief Inspector of Prisons for Scotland has come
out strongly in favour of these centres as a vital means of supporting the families of prisoners, and
Cabinet Secretary for Justice, Kenny MacAskill, also expressed his support for this model. The
publication Prison Visitors’ Centres: An ongoing debate35 outlined the arguments for and against
these centres, concluding that families need independent advocacy to cope with their family
member’s imprisonment. Response to these calls for independent hubs for support has been slow
but is gradually gaining momentum.
Despite its opposition to visitors’ centres in principle, the Scottish Prison Service (SPS) has
progressed the furthest of the statutory sector in its response to children and families of
prisoners. In recent years it has developed Good Practice Guidance, currently being audited for
compliance. This guidance requires each prison to have a Children & Families Development
Group to address the requirements of the guidance and develop local practice. The SPS
is also revisiting the questions it asks regarding families on its Core Screen (a needs assessment
of each prisoner conducted during their first week of custody). Within individual Community
Justice Authorities, key agencies such as the police, courts and social work teams are being
encouraged to embed these families within their own remits and responsibilities, including specific
policy and practice regarding staff training and how to identify and respond to families’ needs.
Beyond the criminal justice sector, responses to the recent Government consultations on child
poverty, school exclusions and literacy (namely the Play, Talk, Read campaign) highlighted
opportunities to support children and families affected by imprisonment through existing
legislation and practice. The Additional Support for Learning Act, the Getting It Right for Every
Child agenda and the Curriculum for Excellence are but a few potential pathways for support for
this group that need to be explored further in the next year.
Footnote:

34 Abstracts from: Annual Report 2009-2010, HM Chief Inspector of Prisons for Scotland, Scottish Government Criminal Justice Directorate, Edinburgh, September 2010. SG/2010/120. 19

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