9.5 The Sussex Joint Protocol to Reduce the Criminalisation of Children in Care and Care leavers

'We have made significant strides in reducing the criminalisation of children and young people...This is a credit to the agencies and practitioners involved. However, although the vast majority of looked-after children and care leavers do not get involved with the justice system, they remain over-represented compared to others in the criminal justice system…This is a challenge we must meet.’ The national protocol on reducing unnecessary criminalisation of looked-after children and care leavers November 2018

The National Protocol on Reducing Criminalisation of Looked-After Children and Care Leavers describes ‘what’ needs to happen across the country.

This local protocol represents a Sussex multi-agency partnership commitment to reducing the criminalisation of Sussex’s Children in Care and care leavers and reflects the principles of the National Protocol by setting out how it will be implemented locally.

 It has been developed to meet local circumstances and builds upon what is already established practice to support our most vulnerable children. This approach has been developed through a multi-agency steering group which have brought together representatives of partner agencies who are key to supporting children and young people and those who are key to the criminal justice system.

In addition to children and young people in care and those young people who have experienced care (care leavers), this local protocol also seeks to reduce unnecessary criminalisation of care leavers up to the age of 25.

Every effort should be made to avoid the unnecessary criminalisation of children in care and care leavers, including through early intervention and prevention services. This is in recognition that many children in care and care leavers transitioning to adulthood have experienced abuse and trauma, affecting their emotional and behavioural development, potentially making them particularly vulnerable to involvement in the criminal justice system, and that criminalisation can be a barrier to successful transition to adulthood and future life prospects.

The primary objective is for agencies to work together to prevent and reduce:

1) offending and

2) the unnecessary criminalisation of vulnerable children and care leavers, accepting that children’s welfare and safety are paramount

It is every professional’s responsibility when working with children to strive to understand the underlying causes of a young person’s behaviour.

All professionals, including social workers, teachers, police officers, foster parents, children's home staff and YOT workers, will strive to ensure that any special educational needs (including communication and interaction, cognition and learning and social, emotional and mental health difficulties) have been identified and should be acknowledged and addressed in the management of the response to the behaviour.

Understanding the needs and perspective of the child or young person at the centre of an incident and listening to their voice should be central to all agencies practice and their response to incidents involving children in care and care leavers.

Whilst this protocol aims to prevent and reduce offending and avoid criminalisation of children in care, victims and communities have a right to be protected from all types of offending. Therefore, where the vulnerable do offend, it is important that the rights and needs and interests of victims are given due consideration in any decision-making process relating to the offending of children.

De-escalation and restorative approaches should underpin response to negative behaviour to help avoid the prosecution of children in care and care leavers wherever possible. Sussex Police and partners will seek opportunities to provide evidence based interventions for this cohort, paying particular attention to offences such as drug possession, which contribute to long term health inequalities. We are also mindful that children with a lack of trust in the police should not be disadvantaged, and seek to successfully implement the No Comment Pathway.

Restorative Justice (RJ) is a process whereby the victim has an opportunity to be heard and state the impact of the behaviour, and the offender has the opportunity to understand the consequences of and take responsibility for their actions. Such RJ approaches can take place informally within the care placement in response to an incident (where police involvement is not required) or as part of a recognised police outcome where it is considered to be appropriate.

Restorative and diversionary approaches should underpin responses to incidents, whether the behaviour occurs in a child’s placement or the wider community.

Children and young people already within the youth and criminal justice systems need protection from escalation and these principles apply equally to them. Persistent and more serious offending can indicate that the young person has significant unmet needs and responses to offending should recognise this.

Children and young people on remand or custodial sentence are often highly vulnerable. Planning for the through-care and resettlement of young people on remand or serving a custodial sentence should start from their entering their remand placement, or custodial establishment, and involve all relevant professionals in their lives.

Support for children and young people is individualised and based on their unique needs and circumstances.

Professionals working with care-experienced young people should understand the impact of abuse and trauma on development, particularly with regard to emotional development and the ability to regulate behaviour.

All agencies should understand the specific needs of children and young people (both UK and foreign nationals) who have been trafficked or are victims of modern slavery.

Agencies should contribute and agree to the joint understanding of factors which increase the risks of young people becoming criminalised. This information should be used to target prevention efforts effectively.

The views of children in care and care leavers should be sought when commissioning health services, including accessing support services for both physical and mental health needs. This should include but not solely encompass neurodevelopmental conditions such as Autism Spectrum Conditions, Attention Deficit Disorders, and foetal alcohol spectrum. These conditions will impact on children’s cognition, understanding, communication and therefore their capacity.  Some studies have suggested the prevalence of such conditions in individuals who interact with the criminal justice system may be as high as 30%. In addition to this the children in care population may have an incidence of neurodevelopmental disorders up to 72%. Therefore, children who are both in care and coming into contact with youth justice services are very likely to have at least one of these conditions.

Health services have a duty to give parity of esteem to the mental health needs as to the physical health of children and young people and to assist partner agencies to understand how children can best be supported to divert them from criminal behaviour.

In order to thrive, children and young people have certain key needs that good parents generally meet. The corporate parenting principles set out seven principles that local authorities must have regard to when exercising their functions in relation to children in care and young people, as follows:

• to act in the best interests, and promote the physical and mental health and wellbeing, of those children and young people
• to encourage those children and young people to express their views, wishes and feelings
• to take into account the views, wishes and feelings of those children and young people
• to help those children and young people gain access to, and make the best use of, services provided by the local authority and its relevant partners
• to promote high aspirations, and seek to secure the best outcomes, for those children and young people
• for those children and young people to be safe, and for stability in their home lives, relationships and education or work; and
• to prepare those children and young people for adulthood and independent living

Directors of Children’s Services and Lead Members for Children should ensure that relevant partners understand how they can assist local authorities apply the principles in relation to the services those partners may provide. ‘Relevant partners’ include local policing bodies and Chief Officers of Police, local probation boards and probation services, youth offending teams, clinical commissioning groups, NHS England, schools and educational institution,

All agencies understand that preventing children in care and care leavers from ever becoming involved with the criminal justice system significantly helps with providing them with the best outcomes.

Ensuring children in care and care leavers have the right placements that meet their identified needs will significantly contribute to prevention. Placements have to be based on as full an assessment of the child's social, educational, health and other needs as possible and the networks in place to support those needs being met. Where availability of placements can differ, it is important that suitability is not compromised and that placements are registered, safe and stable. Analysis of the ACES (Adverse Child Experiences) of a child and the issues in contextual safeguarding are fundamental to effective prevention work with the child. 

It is important that agencies recognise the vital role of early intervention and prevention in reducing criminalisation of children in care and care leavers. Services should co-develop an approach that includes: prevention, early intervention and appropriate response where children and young people do offend. As health is a universal service they are crucial is identifying needs at an early stage and providing preventative and early help work.

Children in care and care leavers interact with a whole range of agencies and professionals and it is important that all of them understand the reasons why children in care and care leavers may behave in particular ways which are different to the universal population; key to this is their understanding of the impact of adverse childhood experiences and trauma on children, young people and adults.

It is reported that 71% of children in care who are criminalised have emotional or behavioural health concerns compared to 51% of all children in care. Many children in care often display the most challenging behaviour due to their pre-care adverse childhood experiences (ACEs). This can be exacerbated by experiences in care and/or other problem ongoing in their lives. ACEs are potentially traumatic events that can have negative, lasting effects on health and well-being.

A key part of this protocol is to promote awareness raising of why children in care and care leavers need to be specifically considered when making decisions about involvement of the criminal justice system. This will be done through the development of a range of multi-agency training options; face to face, e learning and building into current training packages the agreed approach for children in care and care leavers as set out in this protocol and the reasons for that.

To reduce the likelihood of incidents occurring, and young people coming into contact with the criminal justice system, agencies will commit to the following:

• The local authority will make every effort to ensure children and young people have the right, stable placement to meet their needs.

• Where a risk of potential criminality is identified, local authority care plans and pathway plans should be geared towards mitigating this risk.

• It is recognised that caring for and managing children and young people with behaviour which can be perceived as difficult or challenging can be an integral feature of work within care placements.

• There will be a presumption that as for any reasonable parent, corporate parents such as foster carers, residential staff and carers and staff working in supported accommodation provision will generally manage negative behaviour ‘in-house’. They will receive the right training to enable them to do so.

• Agencies should proactively pursue coordinated prevention initiatives, such as the Youth Offending Team’s Prevention and Diversion Scheme. The progress of such initiatives should be shared with relevant partners.

• Where a risk of potential criminality is identified, education and training settings should consider how they are able to engage children and young people and divert them from criminal activity. This could be achieved through the setting’s own expertise, Early Help services or through the support of external agencies such as The Community Initiative to Reduce Violence.

• The child's behaviour should be seen wherever possible in the context of their developmental stage rather than their chronological age. In view of both the high levels of learning and neurodevelopmental difficulties in this age group, but also the direct effect of trauma on development of executive function

• All children in care have statutory health assessments and reviews that enable identification of any physical and mental health needs that need support or intervention. Multiagency reviews should ensure that health plans are progressed. Children in care have higher rates of mental health difficulties than their peers and may have experienced many traumas in their lives. As well as providing direct mental health assessments and interventions, CAMHS clinicians can provide consultation to social workers, youth offending workers, and others in the criminal justice system to help support the development of a holistic plan for the child's welfare and safety

• Foster carers, residential staff and carers and staff working in supported accommodation contribute to reducing the risk of substance related harm for children.

Addressing drug and alcohol use will improve a young person’s health and reduce associated anti-social/criminal behaviour. There are a range of holistic specialist interventions available that children in care and care leavers should be supported to access, based on their personal circumstances.

Immediate risks to safety and the role of the police

 Police should be called to incidents where there is an unacceptable and unmanageable level of risk to personal safety and where it is deemed highly unlikely that order will be restored without police assistance. Immediate police response will be required for incidents of serious violence or serious dangerous disorder where children, residential staff, foster parents or carers are at risk of immediate serious physical harm. In such situations, carers/placement providers should contact the police via the 999 system.

 As per Crown Prosecution Service guidance, the police should complete the CPS 10- point checklist when attending an incident. 10 Point Checklist

Staff and carers need to consider the nature and seriousness of the incident before deciding whether to involve the police immediately, at a later stage, or whether to involve them at all. If appropriate a referral or update should be made to mental health support services.

In circumstances where an offence/incident does not pose any immediate safety risk (and where victim/s indicate that they do not wish to make statements in support of potential charge/prosecution) then such incidents should be recorded and managed internally, without the need to involve the police.

It should be recognised that each individual case should be assessed with a regard to whether or not there is an immediate risk to personal safety, being mindful that arrest and subsequent contact with the criminal justice system brings its own risks for children.

If the decision to call the police is made, then, upon the arrival of the police at the scene, a joint consultation (police and carer) should inform whether arrest is necessary and proportionate. The decision to arrest will remain with the Police.

Where police are notified of an incident, they will record it in accordance with the National Crime Recording Standard (NCRS) if it meets the standard for recording a crime.

They may or may not attend depending on the nature of the incident. Recording a crime that meets the threshold is absolute, but the decision to attend and or investigate, and utilise a number of different options for intervention is a subjective decision by the police, based on threat, harm, risk and proportionality.

If called to an incident, the police should act according to the following principles:

• Police have a wide range of discretionary powers to apply, ranging from the use of a legal power to an informal resolution (such as community resolution). Where the police are required to record an incident as a crime but feel further action (other than safeguarding) is not in the public interest, they have the subjective discretion to resolve the report accordingly by applying Outcome 21 from the National Police Outcomes Framework.

• Similarly, if further action is not in the public interest but it is felt that the young person would benefit from intervention, an Outcome 22 could be advised and referred to Prevention and Diversion Scheme within YJS, or other local services to offer relevant interventions.

• Children and young people should only be taken to a police station custody as an absolute last resort. However, where this is necessary, they should be adequately and promptly supported by their responsible local authority or care setting. Police, social workers, health services, education staff and carers should also consider what will happen when the child is discharged from the station. A police station is a very poor environment for children, so partners should ensure a plan to place the child promptly into a more suitable environment is in place.

• In circumstances where informal community resolution is inappropriate, the police should always consider alternatives to charging.

• Police officers are trained in vulnerability, and have access in their role to a huge range of people, places and buildings. Even if not in relation to their original deployment, officers are expected to be responsive to Adverse Childhood Experience triggers, and initiate referral’s to Early Intervention Opportunities for children who may be at risk in the future.

• Any action of a young person should be considered as to whether their behaviours are due to exploitation or human trafficking or modern slavery.

• Where agencies are designated organisations, they should understand their responsibilities under the Modern Slavery Act such as the National Referral Mechanism and Duty to Notify.

• The agency should make a referral to the National Referral Mechanism. If they are a victim of trafficking or modern slavery, the non-prosecution principle 8 within the Modern Slavery Act 2015 should be considered and, if appropriate, applied.

• If referred to the Crown Prosecution Service, pre-charge or post charge, relevant detail regarding the young person must be included in the file such as their history, known behavioural issues resulting from trauma and so on. The completed 10-point checklist must also be included (see Annex ??)

• Where a child or young person has been arrested, upon release from custody the officer in charge of the investigation is to consult with the relevant partners to develop a safe release strategy.

Inappropriate Response to Behaviour

Inappropriate response to behaviour which can be perceived as challenging can contribute to the breakdown of placements and can be linked to a drift into criminal and exploitative sub-cultures across the country. This impacts not only the likelihood of placements remaining stable and achieving successful outcomes, but the future of care leavers who are dramatically over-represented in the prison population

Where a child in care or care leaver has entered the criminal justice system the overarching aims of all professionals are as follows:

•  Reducing the likelihood of reoffending.
•  Children in care / care leavers are not disadvantaged because of their legal status.
•  Confronting young people with the consequences of their offending.
•  Tackling risk factors for the young person.
•  Ensuring justice is proportional and swift.
•  Encouraging reparation.
•  Identification and disruption of any third parties responsible for that child being drawn into criminality

If a child in care or care leaver is charged with an offence:

• The local authority must ensure the young person is supported to understand what is happening and is legally represented by a solicitor with expertise in youth justice.

• If the child has an Independent Child Trafficking Advocate, they should be advised and be able to attend court to further support the child.

• Children and young people who appear in court must be accompanied by their social worker or personal adviser.

• As per the Concordat on Children in Custody, all professionals should seek to avoid young people being held in police cells overnight where possible.

• In cases where bail is refused due to issues such as witness intimidation, moving the young person away from the geographic area of risk is preferable to them being held on remand.

• A working arrangement between the Youth Offending Service and the local authority Placement Management Team should be developed to avoid situations whereby bail or remand to local authority accommodation is refused by the court due to no suitable address being available. Where it is not possible to implement a placement package on the day of court, agencies should work together to enable an early bail application with a robust package of support.

If a custodial or community sentence for the young person is likely:

• Youth Offending Services and the local authority, including Independent Reviewing Officers, should continue to work closely together, share information and clarify their roles and responsibilities to ensure the young person receives the support they need.

• Children and young people should be visited by their social worker or personal adviser within a week of entering custody. Visits thereafter should take place at least 6-weekly, or at an appropriate frequency in light of their needs and length of sentence.

• If a young person receives a custodial sentence the local authority should assess their needs whilst in custody and prioritise the identification of suitable post-sentence accommodation. Plans should consider the views of the young person.

• Children should receive healthcare provision that is at least equivalent to that available to their peers living in the community. Intercollegiate Healthcare Standards for Children and Young People in Secure Settings support high quality healthcare provision. They have most recently been refreshed in 2023 to consider changes to regulation, legislation, and professional guidance.

• Where a child or young person is due to be released from custody, their social worker/personal adviser and Youth Offending Service case manager must work together to co-ordinate arrangements for their release and subsequent support in the community. These arrangements should be developed in collaboration with the young person and tailored to their individual needs. The care/pathway plan and Notice of Supervision or Licence should be confirmed with the child well before release and include key details, such as living arrangements, arrangements for education or employment, financial support, and any supervision or licence requirements following custody.

• Children and young people in custody should be allocated the same social worker or personal adviser throughout their sentence wherever possible.

• Children subject of care orders remain cared for until they reach 18 and will still be subject to statutory reviews and visits. Children accommodated under s20 who are given a custodial sentence are no longer looked after, however a custody needs assessment should be completed to determine if ongoing support is required.

Support to reduce offending for those who do enter the criminal justice system

Despite all agencies best efforts, there will be instances where vulnerable children and young people including children in care and care leavers have to enter the criminal justice system. As per the National Protocol, where this does happen, it should be underpinned by the following principles:

If a child in care is charged with an offence:

• When a child in care is charged with an offence, it is important that they are not disadvantaged because of their child in care status. Local authorities should therefore ensure there are viable alternatives to a child being remanded to a secure establishment.

• The home authority must ensure that the young person is:

• Legally represented by a solicitor with expertise in youth justice.

• Supported to understand what is happening to them.

• It is good practice for the child’s social worker to attend court with them, particularly on the day of sentence, to ensure that the child’s best interests are represented and that custody is used only as a last resort

• If the child has an independent Child Trafficking Advocate, they should be advised and be able to attend court to further support the child.

• All local agencies/protocol partners should sign up and adhere to the Concordat on children in custody and seek to avoid holding children in care overnight in police cells where possible.

• Where a vulnerable child or young person is likely to be denied court bail the local authority will provide suitable accommodation and propose a Remand to Local Authority Accommodation in order to divert the children and young person from being remanded to Youth Detention Accommodation.

• If a child in care receives a community sentence, their social worker and Youth Justice Service case manager should continue to work closely together, share information and clarify their roles and responsibilities to ensure the child receives the support they need.

• If a custodial sentence is likely, the Youth Justice Service worker and the child’s social worker should work together to prepare the child, explaining what will happen and how they will be supported. The social worker should feed in any relevant information to the Youth Justice Service ahead of them preparing the pre-sentence report.

Children and young people involved in incidents outside Sussex.

As a general principle, low level incidents occurring outside Sussex can be dealt with via a discussion with Sussex professionals. Otherwise, incidents are dealt with in the area where they occur.

Home local authorities must notify the receiving authority and health services that a child or young person is moving into their area either before the placement is made, or within 5 working days if an emergency placement, as required by Care Planning, Placement and Case Review (England) Regulations 2010.

All professionals should ensure that barriers to sharing information and communicating across areas or agencies are minimised.

Where a young person offends, it will be the duty of those in the area where the offence takes place to consult and discuss ways forward with the child’s responsible authority. This can include remitting the case back to the child’s home local authority area for decision to ensure that informed decision-making and appropriate action is taken to reduce the risk of repeat offending. After charging however, legal decisions cannot be remitted back to Sussex. This can only happen after a conviction.

Information sharing is a vital component to safeguarding children. It is vital agencies develop an environment of information sharing that demonstrates to young people that agencies work together and keep each other informed of developments in order to serve children’s best interests.

Any practitioner can share relevant personal information about a child lawfully if it is to keep a child safe from harm, or to protect their physical, mental and emotional wellbeing. All practitioners should aim to gain consent to share information but should be mindful of situations where to do so would place a child at increased risk of harm.

Information may be shared without consent if a practitioner has reason to believe that there is good reason to do so, and that sharing the information will enhance the safeguarding of a child in a timely manner.

The information that could be shared between agencies for contextual safeguarding may include the following:

• Children and young people (both UK and foreign nationals) at risk of being sexually exploited (including regular updating of any CSE assessments), coerced in to criminal activity, or trafficked.
• Children and young people believed to be criminally active. Children and young people identified as criminally active being monitored including recording their clothing, times in and out of their home and any property appearing without formal recognition or identification.
• Areas identified as used by drug dealers in the locality of their placement.
• Sex offenders living in or near placements if relevant (including notification by police as part of information regularly provided to inform children’s home Location Review Risk Assessments).
• Grooming activity in the location.
• Gang activity in the location.

This protocol is overseen by the Pan Sussex Safeguarding and Child Protection Policies and Proceedures Group. 

Local authority Corporate Parenting Boards are designed to provide the necessary leadership to drive an ambitious and multi-agency approach to improving outcomes for children in care and care leavers. They must be confident that they have an accurate picture of offending by children in their care and should ensure systems are in place to identify all those who are offending whether placed within the home authority or outside.