Broken systems

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As discussed in Chapter 2, the introduction, development and expansion of a range of diversionary (and to some extent decarcerative) measures in recent years has contributed to a welcome reduction in the size of youth justice populations. But as we also noted, diversion (and decarceration) has been applied unevenly and identifiable groups of children and young people - especially racialised children and young people with mental health disorders, cognitive/neuro-disabilities and/or complex needs - have not benefitted in the same way as others. Accordingly, the constituencies of children and young people engaged within the realms of youth justice and penality in Australia and in England and Wales have become more skewed, and the disproportionate presence of those with the greatest needs - a residualised cohort - is increasingly conspicuous. Indeed, many of our interviewees reported that minimal headway has been made in diverting such children and young people and there is little, if any evidence, to suggest that strategies are in place to address this problem.

In this sense our research echoes the findings of other studies (see, for example, Baldry et al. 2015) and points towards the compelling need for holistic strategies of identification, assessment and diagnosis, followed by tailored support delivered at the earliest appropriate opportunity. Our interviewees referred to a ‘whole range of things that [are] not identified early enough’ (QLD, Solicitor), despite the fact that ‘the majority of young people coming through here have cognitive disabilities that should be recognised’ (E&W, YOT Interventions Manager). Interviewees also explained that a lack of consistent assessment procedures, often combined with inordinate delays, mean that in most cases children and young people do not have their impairments diagnosed - if they have them diagnosed at all - until they are already enmeshed in the youth justice system: ‘quite often it’s not until they come into juvenile justice that it’s picked up’ (NSW, Senior Juvenile/Youth Justice Manager). Identification, assessment and diagnosis needs to be ‘more embedded... so that young people [with] mental health or intellectual disability can be screened out before they’ve gone through a [youth justice] process’ (NSW, Juvenile/Youth Justice Practitioner).

Of course, we recognise that there are numerous complex challenges pertaining to the identification, assessment and diagnosis of mental health disorders, cognitive/neuro-disabilities and/or complex needs in respect of children and young people including, but not necessarily limited to, inconsistent definitions of different ‘impairments’ and ‘disorders’ across agencies including youth justice, education, health and social care; the conflation of ‘cognitive disability’ and ‘mental health’ (McCausland and Baldry 2017); an absence of standardised assessment processes; a shortage of culturally appropriate and validated screening tools and lack of clarity around who, when and/or which agency is best placed to undertake such assessments. Our research indicates that it is often untrained police officers who are left to formulate ‘assessments’ and this too, echoes similar findings from elsewhere (Crane et al. 2016).

We also recognise the particular problems - and challenges - concerning the identification, assessment and diagnoses of mental health disorders, cognitive/neuro-disabilities and/or complex needs in respect of Aboriginal and Torres Strait Islander children in Australia and black and minority ethnic young people in England and Wales. In England and Wales, a major independent review into the treatment of, and outcomes for, BAME people in the criminal justice system found that although the ‘main pathways... for young people into the youth justice system all record high levels of ethnic disproportionality: from school exclusions, the care system, Child and Adolescent Mental Health Service (CAMHS)’ (Lammy 2017: 17), the very same children ‘are less likely to be recorded as having problems, such as mental health, learning difficulties and troubled family relationships, suggesting many may have unmet needs’ (ibid: 5). This is almost certainly indicative of base neglect and although such neglect applies equally in Australia, additional issues are also at play.

A lack of appropriate diagnostic instruments specific to Aboriginal and Torres Strait Islander children and young people is a key contributing factor, but there are also further complexities. Aboriginal and Torres Strait Islander conceptions of social and emotional health and wellbeing tend to encompass connections to land, culture, spirituality, ancestry, family and community and therefore differ to those of many non-Indigenous Australians. It is clearly important, therefore, to ensure that identification, assessment and diagnosis is embedded in, and underpinned by, understandings that take account of historical, cultural, social, economic and political specificities (Dudgeon et al. 2014a, 2014b). The ongoing impacts of colonisation, histories of problematic government intervention and a past distrust of state-provided services, may contribute to a reluctance on the part of Aboriginal and Torres Strait Islander families and communities to have their children and young people exposed to assessments that hinge on ‘mainstream’ criteria that tend to stigmatise and lead to negative forms of intervention (Simpson and Sotiri 2006; Calma 2008; Baldry et al. 2015).

Even when identification has taken place, however, a lack of culturally appropriate and/or accessible community-based mental health services - especially for those living in rural or remote regions - and/or a reluctance to engage with ‘the characteristically monoculture nature of service delivery in existing services’ (Westerman 2010: 212), means that for many Aboriginal and Torres Strait Islander children and young people, their mental health disorders, cognitive/ neuro-disabilities and/or complex needs are often neglected, untreated and/or unsupported (Dingwall et al. 2013).

The need for identification, assessment and diagnosis in order to facilitate diversion from the youth justice and penality sphere has been recognised for some time. The key obstruction is that the organisational systems that should operationalise such processes and provide appropriate support for all children and young people with mental health disorders, cognitive/neuro-disabilities and/or complex needs are fundamentally broken. As three of our interviewees explained:

Even if they do get diagnosed with a mild intellectual disability, what happens then? Who would support them? There’s a limited number of disability services that might be able to give those kinds of clients the amount of support they need. (QLD, Juvenile/Youth Justice Manager)

The reason they’re disconnected from school, the reason that they’re vulnerable, that they’re exploited by adults is [that]... We have failed them. The fact that they end up in jail means that we have failed — all those systems; housing, family support, education, health - we’ve all failed them, that’s why they’re here. (QLD, Senior Juvenile/Youth Justice Manager)

The proportion of children and young people... in custody with disabilities, including mental illness and cognitive deficits, is appalling high. Why is it that that’s where the funnel takes them? The funnel should take them in a different direction, but what services do we have that work well with children and young people that fall in that spectrum? (NSW, Academic Expert [former Juvenile/Youth Justice Manager])

Moreover, the dearth of services, and the lack of strategic coordination, is particularly accentuated in remote communities as other interviewees explained:

Even if you’ve got a good report that diagnoses the problem, particularly in remote areas, rural areas and the Northern Territory generally, there simply aren’t the services. (NSW, Family Court Judge)

You take a country town in NSW, there’s no one in charge... you’ve got various government agencies and departments, you’ve got DFACS [Department of Family and Community Services], you’ve got the police, you’ve got the hospital, you’ve got Juvenile Justice, you’ve got education but no one’s pulling it all together... there’s no one with overall authority to say what should happen in that town... If we had a centralised body responsible for dealing with youth across the board, every country town would have someone whose job it was to coordinate all the programs in the area. (NSW, Children’s Court Magistrate)

If the collective systems have been broken for some time, the situation in England and Wales has deteriorated further over the last decade or so, during which time government-imposed conditions of‘austerity’ have, in the words of the United Nations Special Rapporteur on Extreme Poverty and Human Rights, become a ‘social calamity’ (Alston 2018: 1). Indeed, so-called ‘austerity measures’ have placed a range of agencies that provide vital services for children and young people in greatest need - including those with mental health disorders, cogni-tive/neuro-disabilities - together with the practitioners who work within them, under unprecedented levels of pressure in attempting to balance and reconcile reduced resources and deep cuts, with increased needs and an intensification of demand. The National Audit Office (2018) has reported that the funding received by Local Authorities - from central government - to sustain such services nearly halved between 2010 and 2018. Within this broader context, legal duties to support disabled children, safeguard child welfare and provide services for Looked After Children - coupled with substantial increases in the numbers of children at risk and in need of such services - is being seriously compromised (Churchill 2018). The NSPPC (2018) has reported that the number of school pupils referred to child and adolescent mental health services (CAMHS) increased by a third from 2014 to 2018 but over 30 per cent of those referred were declined a service.

For as long as strategic coordination is lacking and essential services are broken, and until such time that the myriad challenges are addressed in Australia, and (arguably more so) in England and Wales, systemic injustices will endure, the disabling effects of youth justice and penality will persist and children and young people with mental health disorders, cognitive/neuro-disabilities and/ or complex needs will continue to be unnecessarily and disproportionately criminalised.


The evidence that we have gathered, presented and analysed, graphically illustrates the means by which children and young people with mental health disorders, cognitive/neuro-disabilities and/or complex needs - who are invariably additionally disadvantaged through the infrastructure of everyday life — are excessively criminalised and exposed to systems of regulation, control and punishment rather than health, care and welfare. Moreover, ongoing and repeated contact with youth justice systems routinely produce devastating long-term consequences for such children that continue to damage and disfigure their lives into adulthood. By applying the lens of critical disability criminology, we have conceptualised such systemic injustice as the principal outcome of modes of intervention that ultimately impose disabling effects. Not unlike our analysis of racialisation, this implicates youth justice and penality in the production and reproduction of systematic exclusion and isolation - a disabling technology that bears down on a constituency of children and young people with profound needs or, to put it another way, an apparatus through which disability is criminalised and punished.


  • 1 For our purposes here, the term ‘mental health disorder’ is broadly used to refer to a ‘temporary or continuing disturbance of thought, mood, volition, perception or memory that impairs emotional wellbeing, judgement or behaviour, so as to affect functioning in daily life to a material extent' (NSW Law Reform Commission (NSWLRC) 2012: 138).
  • 2 We use the terms ‘cognitive disability’ and/or ‘neurodisability’ to refer to an ‘ongoing impairment in comprehension, reason, adaptive functioning, judgement, learning or memory that is the result of any damage to, dysfunction, developmental delay, or deterioration of the brain or mind’ (NSWLRC 2012: 136). Both cognitive disability and neurodisability are taken to incorporate a wide range of specific neurological conditions including, but not limited to: intellectual impairment; communication disorders; attention deficit hyperactivity disorder; autism spectrum disorders; ac-quired/traumatic brain injury; epilepsy and foetal alcohol spectrum disorders (see, for example, Hughes et al. 2012: 18-19).
  • 3 Similar forms of over-representation are increasingly being recognised on a global scale (United Nations 2019).
  • 4 ‘Complex support needs’ are taken to include (but are not limited to) a combination of: mental health disorders, cognitive/neuro-disabilities, poverty, disadvantaged family circumstances, poor housing and/or homelessness, educational disservice and/ or school exclusion, Out of Home Care/Looked After status (see Baldry and Dowse 2013; Dowse et al. 2014; Baldry 2014, 2017; Baldry et al. 2018). Such needs intersect with, and are often compounded by, the structural relations of class, ‘race’, gender and sexuality.
  • 5 Examples of mental health disorders include but are not limited to: mood disorders (such as depression, bipolar disorder); anxiety and panic disorders; personality disorders; psychotic disorders (such as hallucinations; schizophrenia); eating disorders; obsessive-compulsive disorders; trauma-related disorders (such as post-traumatic stress disorder) and various forms of substance misuse/reliance.
  • 6 See:
  • 7 Designated as children in ‘Out of Home Care’ in Australia and ‘Looked After Children* in England and Wales.
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