Victoria Legal Aid

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

For kids who can’t live with their family, residential care is meant to be a safe and supportive environment. Instead, it often creates additional harms and is the setting for a child’s first contact with police.

‘Kids in resi want love and to feel welcomed. Not like you’re in the gutter just because you’re in resi because your family has issues. Kids are going through hard stuff and if they act badly, they’re doing it for a reason.’ - Mia

The state provides residential care for children who can no longer live with their family when other out-of-home care (OOHC) options like foster, permanent or kinship care (living with relatives) are not available.

Children placed in residential care are some of the most marginalised in the community.

Many have been exposed to multiple traumas from a young age, including physical or sexual abuse, neglect or family violence.

Exposure to trauma often results in kids displaying challenging behaviour. This should be managed with an intensive, therapeutic care response. But all too often, residential care facilities resort to calling police instead. This includes for actions like breaking a cup or other property damage that wouldn’t attract a police response if it happened in a family home.

This over-reliance on police means the children most in need of help are pushed into a cycle of involvement with the criminal justice system, which often has lifelong impacts.

Since 2016, informed by our clients’ experience, we have called on the state government to adopt a new approach that focuses on providing a therapeutic response, not a justice response.

Because every child in residential care needs care not custody.

Latest news

Towards a better system

Providing care, not custody

An analysis of our client data from August 2019 to August 2022 illustrates the high rates of criminalisation for children in residential care.

The data shows that two out of every five child clients living in residential care at the time of their final child protection order were involved in the criminal justice system within 12 months.

Within two years, every second child was charged.

The analysis shows that children in other OOHC environments are also more likely to face criminal charges than those living at home, but the highest rates of criminalisation occur for those placed into residential care settings.

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 crim

A framework that lives up to its name

In February 2020, we welcomed the government’s introduction of a framework to reduce the criminalisation of young people in residential care.

The agreement between the residential care service sector, Victoria Police and key government agencies highlights the importance of trauma-informed approaches when working with young people.

It provides decision-making guidance for residential care workers so they can avoid calling police for low-level incidents. Crucially, it also states that charges won’t be pursued when there are viable alternatives.

But four years on, there is insufficient reporting to tell us if and how the framework is having an impact. While there have been some improvements, at court our lawyers regularly find police don’t know about the framework.

We continue to call on the statement government to formally take action to:

  • ensure any relevant new policies and practices appropriately reflect the framework
  • integrate the framework as an essential part of staff training across the sector and Victoria Police
  • establish clear and consistent processes for escalating cases where the framework has not been applied
  • establish better data collection and reporting to monitor the impact of the framework.

Raise the age of criminal responsibility

The over-criminalisation and over-policing of young children in care is one reason we support immediately raising the age of criminal responsibility from 10 to 14.

Read more about how making this change will better support children to thrive.

Our clients' experiences

  • Mia (not her real name) grew up living with her mother after her parents separated. She loved her Mum, but her Mum had mental health issues and sometimes tried to harm herself in front of Mia. After those incidents, Mia went to live with her father, who was also looking after four of Mia’s siblings. Mia found it hard to settle at her dad’s place. She was diagnosed with an intellectual disability and complex post-traumatic stress disorder. After a few months, her dad decided that he was not able to care for her anymore, so Mia was moved to residential care. Now 15, Mia says residential care doesn’t provide the support and care she craves. ‘It’s bad because you don’t get love there. People just come to work to get the money and go home. There’s not many carers that like you and stuff gets locked away, so you can’t even get metal forks or glass cups,’ she said.

    When Mia first moved, a lot of her workers weren’t told about her background, disabilities and mental health issues and weren’t provided with training on how to manage and support these conditions. She said workers often called police for minor things. ‘I was going through a lot of stuff and I got in trouble for stupid things like breaking a plate. It’s like the workers thought they had to punish me. It’s not fair, it’s like they gang up on the kids.’

    Mia said while some police treated her with kindness, others were not sympathetic. ‘All they think about is, when the police come, charge charge, charge. The police can be mean. They say “calm the **** down” and when kids are upset and crying they say, “stop crying, you’re just being a sook.”’

    Mia is now going to court over multiple charges of property damage. But she believes there are other ways to deal with misbehaviour. ‘In three years, I’ve had two good workers. One of them treats me like her own daughter, she understands and she listens. If you get upset or angry the good ones don’t get mad or threaten to call the police on you. They give you a hug, then you get better.’

    ‘The good workers actually really care and they think about you when they’re outside of work, like they call you and check in,’ said Mia.

    When Mia was in care, a much-loved family member stopped contacting her out of the blue and she didn’t know why. A year later, she accidentally saw a document that detailed how that person had died from suicide. Mia hadn’t been told that the family member had died and how. On discovering the document, Mia got upset and ripped up the piece of paper. She then went into the office to try and find more information about what had happened to her family member. The police were called and Mia was charged with criminal damage for ripping up the paper and burglary for entering the office without permission. Mia’s lawyer is trying to have the charges relating to this dropped.

    Mia often leaves residential care to see friends and because ‘I’ve had enough there and I feel more free and welcomed in the community,’ she said. She is often then placed in secure welfare, a higher security facility.

    Mia is hoping to get a job and one day, to travel the world. ‘My dream is to go travel the country. I just want to see the whole world. I want to swim with the turtles.’

    Mia says young people in out of home care need more understanding. ‘Kids in resi want love and to feel welcomed. Not like you’re in the gutter just because you’re in resi because your family has issues. It shouldn’t be like this. Kids are going through hard stuff and if they act badly, they’re doing it for a reason.’

  • Anna lived in residential care from age 11 to 17. Once, police were called because she walked into an office without permission and she was charged with burglary.

    Anna (not her real name) is an Aboriginal woman from regional Victoria. Anna went into kinship care at 11 weeks old, and just after her 11th birthday, she was taken away from her family and placed in residential care. Within the first four days, Anna was moved three times. ‘I have no idea why they moved me so much. In the next four years, I was moved over 35 times from one town to another and all over the place. I never unpacked my bags in the end because I didn’t know when I would move again’, she said.

    With all the moves, Anna lost contact with her family for some time. But living in residential care never felt like home: ‘It was the worst time in my life … It’s meant to be like a home and a sort of family for you, but there are locks everywhere; to eat, you have to ask, in some places you never knew what staff would be on, so you’d wake up to someone in the house that you’d never even met before. As an 11-year-old, it felt like prison.'

    She says normal things, like having a pet, were denied to her in residential care: ‘I bought a cat with another kid, and the staff kept trying to take it away from us because you’re not allowed to have pets, but it was the best thing, it was sort of therapeutic. When I had a cat, I didn’t want to get in trouble because I didn’t want to get separated from it.’

    Anna got into trouble a few times when she got frustrated or upset. On one occasion, police were called because she walked into an office without permission and she was charged with burglary.

    ‘Once the police arrived, they’d charge you for every little thing, not just one charge, and it was for stupid stuff. The staff would push for the police to take us (to the station) or charge us and they didn’t care about the repercussions this has afterwards.’

    Anna’s experience of living in residential care improved in her final placement when she had the support of permanent staff. ‘It felt like the staff actually wanted to be there and with their help, I started to see the light at the end of the tunnel.’

    Despite moving so many times and dealing with court processes that the criminal charges brought on, Anna was determined to stay in school. She now has one year before she completes her studies in early childhood education. Working a part-time job waitressing and playing for her local netball team, Anna should have a world of opportunity ahead of her, but she faces barriers others don’t.

    ‘When I was at school having a criminal record meant that I always had to go and talk to the principal about what was happening in the unit or my behaviour. But now that I am an adult it’s way worse. I can’t pass a police check. It’s delayed my career because I need to do placements for my studies and need to pass those checks to get a job in childcare.’

    Anna says having minor criminal charges from her past makes it harder to live a productive life.

    ‘As a kid in residential care, it feels like all your life you’re judged off a bit of paper instead of who you are as a person, and you think once you’re out of resi care it’ll be different. But the joke's on you, because even once you leave, then there’s another bit of paper you’re being judged off.’

    Please note, Anna was a client of our practice partner the Victorian Aboriginal Legal ServiceExternal Link .

Disclaimer: The material in this print-out relates to the law as it applies in the state of Victoria. It is intended as a general guide only. Readers should not act on the basis of any material in this print-out without getting legal advice about their own particular situations. Victoria Legal Aid disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of the publication.

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Reviewed 11 April 2024

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