Care not Custody – keeping kids in residential care out of the courts

Care not Custody – keeping kids in residential care out of the courts

Children placed in out-of-home care (OOHC) are some of the most vulnerable and disadvantaged in the community. Many have been exposed to multiple traumas from a young age due to family violence, substance abuse, neglect or abandonment, and sexual or physical abuse.

Numerous studies have shown that despite being removed from unsafe environments, once placed in OOHC, too many of these children become unnecessarily involved in our criminal justice system.

Since 2016 we have been advocating for a new approach to reduce the contact kids in OOHC have with the criminal justice system. We found that more than one in three of our clients aged 11–17 who are placed in out-of-home care require help with a criminal matter. Read our report Care not custody: A new approach to keep kids in residential care out of the criminal justice system (pdf, 2.53 MB) or the accessible Word version (226.87 KB).

Partly due to this advocacy, the Victorian Government has announced a new plan to reduce young people’s contact with police and their entry into the court system. The plan acknowledges the need for therapeutic approaches when supporting young people in residential care (a form of out of home care – usually a unit with paid staff). It also states that criminal charges should not be pursued if there are viable alternatives. We welcome this new approach to vulnerable children and look forward to being part of the implementation group.

The problem

Young people with criminal charges in residential care

Children placed in residential care are at least three times more likely to require legal help for criminal charges as children in all other placement types (in OOHC or when the child remained with the family).

Of children we assist with a child protection matter who are placed in residential care, our most recent data (from the 2018/2019 financial year) indicates:

  • 51 per cent require legal help for criminal charges within 12 months of placement
  • 12 per cent require legal help for criminal charges and identify as Aboriginal or Torres Strait Islander
  • 16 per cent require legal help for criminal charges and are aged 14 or younger
  • 32 per cent are charged with criminal damage including property damage.

This builds on the evidence from 2016 which showed that:

  • a clear factor pushing children from care into custody is an over-reliance by some residential care facilities on call-outs to police to manage challenging behaviour by vulnerable children, including those who have been victims of family violence
  • children are being charged with minor offences, such as smashing a coffee mug, throwing a phone or spreading food around. These would be very unlikely to attract police attention if they happened in a family home  
  • these practices are entrenching children, often from a very young age, in a cycle of involvement with the police and the courts.   

Our clients' experiences

Jess’s story

Jess grew up exposed to family violence and was placed in out-of-home care when she was 13. She was placed in residential care after being moved through multiple foster homes. Find out what happened to Jess when she became upset and frustrated after being cut off from seeing her mother, with whom she was trying to improve her relationship.

Read Jess’s story.

Jon’s story

Jon was born with multiple difficulties, including autism, an intellectual disability and ADHD. From an early age he displayed a range of challenging behaviours, and his mother on occasion had to seek help from neighbours and local police to help calm him down. Jon was 11 when his doctor expressed concern about his escalating behaviour, and his mother was obliged to place him in residential care on a temporary basis. Find out how Jon received 25 criminal charges during the few months he was there.

Read Jon’s story.

Mia's story

Mia is 15 and moved into residential care after her father said he could no longer look after her. Despite a diagnosed intellectual disability and a history of trauma, Mia’s workers weren’t provided with training on how to manage and support these conditions. 

Read Mia's story.

Also read

Towards a better system – the new framework

Informed by our clients’ experiences, since 2016 we have called on the state government to adopt a new approach, similar to Queensland and New South Wales, which explicitly aims to reduce children’s contact with police.

The new framework emphasises the importance of trauma-informed approaches to working with young people. It provides decision-making guidance for residential care workers to avoid calling police for low-level incidents. Importantly, it states that charges won’t be pursued where there are viable alternatives. We are pleased to support the new framework and look forward to driving change through our role in the implementation group.

Read the full report

Our 2016 Care not Custody report:

  1. gives a brief overview of the residential care system in Victoria and the backgrounds of children placed in residential care
  2. discusses the results of academic studies on the links between out-of-home care and criminal justice outcomes, and the reasons why children in care more frequently end up in our juvenile detention systems
  3. examines the experiences of our clients who are placed in out-of-home care, and the reasons why their interactions with the criminal justice system tend to escalate upon their placement in care.   

Care not Custody – A new approach to keep kids in residential care out of the criminal justice system (pdf, 2.53 MB) or the accessible Word version (226.87 KB).

Read our January 2017 and May 2017 press releases to learn more about responses to this research.

More information

Read Care not Custody fact sheet (docx, 136.12 KB) from a September 2018 data analysis of our child protection clients.

Read the Framework to reduce the criminalisation of children in residential care.

For more information about this report, to get involved in this project or share your experience with us confidentially, please contact Olivia Greenwell, Manager of Strategy Family Youth and Children’s Law via or (03) 9280 3701.

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