Criminalisation of Children Looked After and the Public Interest

This article will discuss the responsibilities of the Prosecutor in cases of child defendants and the guidance for prosecuting Children Looked After (CLA) for low-level offences.  Samuel Eskdale explains the law and the policy in this area. 
Prosecution of Children Looked After Samuel Eskdale

The Children Act 1989 defines a CLA as children who are subject to care of the State, whether through care order, compulsory accommodation or accommodated under voluntary agreement. Amongst others, consideration is given to children who are currently or have previously been in foster care. Prosecuting Children Looked After requires careful consideration and sensitivity but it also requires all those involved to understand the routes that might be taken by police, lawyers, and the courts. 

In every case involving a child defendant, the CPS is required to consider the Public Interest when pursuing prosecution. There are several relevant considerations identified by the Code for Crown Prosecutors, but particularly for people under the age of 18 their maturity and welfare are key to deciding whether prosecution or other out of court disposal is in the Public Interest. 

The CPS guidance on Children as Suspects and Defendants dictates that further consideration should be given to the circumstances of Children Looked After (CLA) when deciding whether to pursue prosecution. It is understood that CLA make up a disproportionate number of children who are prosecuted. 

Central Chambers has close links with the Care Leavers Association, who have identified that Children in care and care leavers account for less than 1% of the general population yet are vastly over-represented in the Criminal Justice System. An astonishing 25% of the adult prison population has previously been in care, with 49% of men under 21 in the CJS having spent time in care and 61% of girls aged 15-18 in custody have spent some time in care. 

Prosecution of CLA for low-level offences 

The National Protocol on reducing unnecessary criminalisation of looked after children and care leavers is a key text for practitioners seeking guidance on public interest considerations in these cases. The goal of the protocol is to provide a framework for practitioners to assist in reduction of criminalisation of CLA and care leavers. 

An Assessment of Vulnerability should be made to consider the child’s background, their position within the care system, their circumstances whether separated from siblings, housed in a geographical area far from other family and their age at the time of offending. Children aged 14-17 are deemed to be at peek age range for offending due to susceptibility to peer pressure, especially in cases of group offending with other CLA. 

Adverse Childhood Experiences and Behaviour Management Prosecuting Children Looked After (CLA) in the context of public interest considerations and legal guidance.

Adverse Childhood Experiences (ACEs) should be considered when assessing the offending behaviour of the child. ACEs are “highly stressful, and potentially traumatic, events or situations that occur during childhood and/or adolescence. They can be a single event, or prolonged threats to, and breaches of, the young person’s safety, security, trust or bodily integrity” (Young Minds, 2018).

ACEs can include any form of abuse, substance misuse or relatives known to the CJS, which may cause the child to display challenging behaviour and ultimately contribute to their offending. 

Prosecutors are expected to be given a copy of the child’s home Behaviour Management Policy to assist in the decision-making process and should accompany any advice on charging. 

Alternative Disposals and Moving Forward 

Alternative disposals should be considered prior to prosecuting Children Looked After (CLA) in the context of public interest considerations and legal guidance., these may include restorative justice, Acceptable Behaviour Contracts or disciplinary measures by the home, should the child still be in care. Prosecution or other legal consequence should only follow if in the Public Interest. 

An example from the Crown Court is the competing public interests of prosecution of the offence of Assault on Emergency Workers and the interests of CLA. Where CLA are arrested or charged with such an assault, if the assault is trivial or “de minimis” the CLA’s interest should be paramount and the CLA should not be prosecuted. 

Should a prosecution be pursued in any case, practitioners should be minded to refer to the guidance and ensure that all necessary steps have been taken before moving forward. It is paramount for both the Public Interest and the interests of CLA to ensure all possible alternative disposals have been considered to avoid any further adverse effects that legal proceedings might have on CLA. 

If the prosecutor is minded to discontinue proceedings, a Notice of Discontinuance should be communicated to the Defendant before an indictment is issued to avoid wasting court time. 

The ultimate goal of the guidance is to minimize the impact that prosecution could have on CLA and care leavers and to avoid further unnecessary criminalisation of young people in the system.

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