Commissioners for children and Victoria Legal Aid disturbed by continuing criminalisation of kids in state care

Media Releases 8 September 2023

The over-criminalisation of children in residential care remains at unacceptably high levels more than three years since an agreement was signed to reduce their contact with police and courts.

New Victoria Legal Aid (VLA) data shows that criminal charges are laid against at least two out of every five of our clients placed in residential care within 12 months of being moved there. Within two years, every second child has been charged.

Placement in residential care and accrual of criminal charges

  • From 1 August 2019 to 1 August 2022:42 per cent of VLA child clients in residential care accrued criminal charges within one year of placement
    • criminal damage (property) was the most common charge at 25.2 per cent
    • 23.6 per cent identify as First Nations
    • 27.5 per cent are aged 14 and under
    • 15.5 per cent identify as living with disability (intellectual disability and mental health issues the most prevalent)
    • Over the same time period, 51.3 per cent of children in residential care accrued criminal charges within two years of placement.
    • For the same time period 1 August 2019 – 1 August 2022:15.5 per cent of VLA child clients on OOHC orders accrued criminal charges within one year
      • Criminal damage charges make up 18.5 per cent
      • 21 per cent identified as First Nations                      
      • 57.7 per cent were aged 14 and under.

Overall criminal charges for children in out-of-home care (OOHC includes residential care, kinship, foster and permanent care)

‘Residential care is meant to provide a safe and supportive environment for children who have been removed from their families due to concerns about their safety,’ said Joanna Fletcher, Executive Director, Family, Youth and Children’s Law at VLA.

‘Instead, our lawyers see that children are being charged and sent before the courts, frequently for incidents they would be unlikely to be charged for if they had occurred in a family home.’

Liana Buchanan, Commissioner for Children and Young People, said the figures show that residential care acting, too often, as a pipeline into the criminal justice system for the state’s most marginalised children – an issue also highlighted in this week’s landmark Yoorrook for Justice report.

‘These are children whose histories of trauma and neglect have brought them into the out-of-home care system; for that system to cause police and criminal justice contact is unfair and unacceptable,’ she said.

‘This over-criminalisation continues despite a shared agreement that therapeutic, trauma-informed responses should be applied for these children, that police intervention should be reduced and, if police are called, that charges should not be pursued where there is a viable alternative.’

It also has a disproportionate impact on First Nations children, who are already over-represented in both youth justice and child protection because of systemic biases.

‘This is sadly another example of the profound injustice of existing systems that continue to sever connection from family and country, which in turn compounds intergenerational trauma and creates ever greater risks of mental health and socioeconomic disadvantage,’ said Meena Singh, Commissioner for Aboriginal Children and Young People.

‘These are systems that are failing our children and young people.’

The Department of Families, Fairness and Housing, residential care providers, Victoria Police and others acknowledge kids in OOHC are in danger of being criminalised and over-represented in youth justice.

The Framework to Reduce Criminalisation of Young People in Residential Care was signed in 2020 and under its guiding principles, says police should only be called when there are immediate safety risks. It also recommends that criminal charges be pursued only if there are no other supportive alternatives.

‘Unfortunately, we’re yet to see the framework translate to change on the ground and police charges for children – including many under 14 – are brought far too readily,’ Ms Fletcher said.  

‘Clearly, we must do more to support families to stay together in the first place, but if children are removed from their families, holistic supports and a trauma-informed approach should be offered so they can go on to lead healthy and productive lives.’

The significant number of children under 14 charged is deeply concerning.

Ms Buchanan said: ‘The Victorian Government’s recent commitment to raise the age of criminal responsibility recognises that young children do not have the maturity to understand the impact of their actions and that entrenching children in the justice system is inherently harmful.’

Both CCYP and Victoria Legal Aid support the immediate raising of the age of criminal responsibility from 10 to 14. Victoria Legal Aid is the largest provider of legal services for children and families in the child protection system.

Client story: Jane (not her real name) grew up in a violent home and has been involved with Child Protection since she was 10. Last year, she was removed from her parents for the first time and placed in residential care. During her placement, she was charged by police for threatening a staff member while holding a ruler. 

Jane said she made the threats because she was upset at how the staff member had treated her friend earlier that day, but that she never intended any harm.

Her VLA lawyer has asked police to withdraw the charge based on the framework to reduce the criminalisation of children in residential care guidelines, which recommends a trauma-informed approach to anti-social behaviour. 

Jane was 14 at the time and prior to this incident, had no other interaction with police except for a caution. She feels like she was only charged because of her experiences in residential care. Since leaving the unit, Jane has been in more trouble with the police. She hopes she doesn’t have to go back.

Note: Jane is not available for interview.

Further reading:

Charged with throwing a sponge: Residential care criminalising kids, data shows (The Age)

Media contact:

Darren Lewin-Hill
0437 046 360