The Involvement of Children in out of Home Care in the NSW Criminal Justice System
Total Page：16
File Type：pdf, Size：1020Kb
Care-criminalisation: the involvement of children in out of home care in the NSW criminal justice system Katherine McFarlane Thesis in fulfilment of the requirements for the degree of Doctor of Philosophy School of Law Faculty of Law 2015 i ACKNOWLEDGMENTS This thesis would not have been possible without the support and professional guidance of my supervisors, Professor Dr Eileen Baldry from the UNSW School of Social Sciences and Professor Julie Stubbs from the UNSW Faculty of Law. Thanks also to my former supervisor, Professor Dr Chris Cunneen, also from UNSW Law, and to my Review Panel, chaired by Associate Professor Dr Annie Cossins. I owe you all a debt of gratitude for your encouragement and advice. I extend my appreciation to the many NSW Children’s Court magistrates, judges, registrars and Court staff who supported me to undertake this research. The late Scott Mitchell was a particular inspiration and an endless source of encouragement. He opened his Court to me from the very beginning. I was also very fortunate to have the assistance of the Presidents of the NSW Children’s Court, Judge Mark Marien and Judge Peter Johnstone. Magistrates Paul Mulroney, Gary Still, Joan Baptie, Jo Keogh and others also took an interest in this project. Thank you all. Thanks too to Jenny Mason, former Director General of the NSW Department of Human Services. I was told the Department would never let a project like this get up, but you agreed that it was a necessary and important piece of research. My thanks to my colleagues at Charles Sturt University Bathurst, who asked a thousand questions and happily volunteered as a live audience whenever I needed to test a theory or an assumption. My especial thanks to Associate Professor Dr Graham Tyson and Dr Andrew McGrath. Also Peta Kennedy from the UNSW School of Social Science – I am so grateful that you were there to double-check my maths and save me further sleepless nights. ii My heartfelt appreciation to Brad Hazzard, the former NSW Attorney General and Minister for Corrective Services and Juvenile Justice and currently the Minister for Family and Community Services. I am extremely lucky to have had your support throughout this long slog. You kept saying you wanted a Chief of Staff with a PhD – well, I’ve done my best. I’m sorry it took so long but work kept getting in the way! And thank you to John Murray. You always said someone should do a PhD about the pathway from care to crime – I’ve kept my end of the deal, now we’ve got to write the book! Thank you for your endless support, inspiration and advice. All my love. Always. Finally, my respect and thanks to the children whose files I read a hundred times and who made this research come to life, and to the many prisoners and careleavers who shared their stories with me - the men of Long Bay Remand Centre, the MRRC and Silverwater and the women of Mulawa, Norma Parker, Emu Plains and Dillwynia. Thank you for taking the time to tell me the stories of your lives. I hope I have done you justice. And to my family and friends: I’ve got some spare time now if you want to catch up. iii iv v vi TABLE OF CONTENTS Page List of Tables xi Abbreviations xii Chapter One: ‘A Central Link in the Carceral Archipelago’ 1 The theories 3 Motivation for the thesis 4 Key Research Questions 7 Methodology 8 File Audit 9 Observations and field notes 11 Stakeholder feedback 11 Terminology 12 Ethics Approval 14 Thesis chapters 14 Chapter Two: Setting the Scene: care-criminalisation in NSW 18 The NSW Out of Home Care System 18 The NSW Criminal Justice System 21 Reforms, Relationships and Resistance 24 The role of the NSW Children’s Court 28 The Court and the Department 33 The Court and the non-government sector 34 The non-government sector and the Department 35 Conclusion 40 Chapter Three: Systems Abuse in NSW 41 Peer contagion 42 Transportation and the NSW colony 43 Indiscriminate accommodation 44 Sir Charles MacKellar 47 vii Page The 1920 Allard Royal Commission 47 The 1975 Muir Report 49 ‘Essentially gaol-like and cheerless’ institutions 50 Labelling and stigma – the significance of language 54 The impact of institutional brutality 55 A series of Inquiries 57 The reaction of Government 64 Re-deployment of institutional staff 65 The Aborigines Welfare Board 65 Inadequate staff training 66 Reliance on casual and temporary staff 70 Conclusion 72 Chapter Four: The Literature 75 The Statistics 75 Involvement with the CJS 75 Persistent or chronic offenders 77 Recidivist offenders 78 Violent offenders 78 Juvenile detention 79 Additional disadvantage associated with care status 80 Adult custody 82 Additional disadvantage associated with care status 83 The significance of comparison studies 84 Reasons for Involvement in the CJS 87 Pre-existing conditions 87 Models of care 88 Residential care 88 Group homes 88 Foster care and kinship care 90 viii Page Systems abuse 91 The post-care experience 93 Discussion: Limitations of the Literature 95 Focusing on pre-care experiences 98 Focusing on models of care 101 The problem of ‘agency-sponsored research’ 104 Considering the views of children in care 106 Knowledge of the issues 108 Politics and selection bias 109 Conclusion 114 Chapter Five: The NSW Children’s Court File Audit 117 Methodology 117 Demographics 120 Gender 120 Age 121 Country of birth 122 Aboriginality 122 Out of home care 123 The prevalence of trauma incidents and disadvantage 124 Care-specific trauma 126 Pathways through the criminal justice system 129 Age at first contact with the criminal justice system 129 Age at 1st charge 130 Time from first contact to first charge 131 Care-related offending 133 Custodial remand 134 Remand following a breach of bail 135 Time on remand 136 Sentencing 137 Discussion: The impact of out of home care 139 Criminalisation - kinship care 141 ix Page Criminalisation – residential care 142 The significance of the ‘domestic relationship’ 143 The use of Apprehended Violence Orders (AVOs) 144 Negative police attitudes 146 The treatment of absconders 149 The impact of judicial decisions 152 Bail conditions 152 Custodial remand 157 Referrals to diversionary programs 159 The sentencing process 162 The impact of trauma and disadvantage 165 Failure to provide programs or support 171 Lack of Departmental support at Court 173 Conclusion 178 Chapter Six: ‘Institutional indifference and neglect’ 180 International human rights instruments 180 An Australian policy vacuum 185 The situation in England and Wales 188 Institutional indifference and neglect 193 Government recognition of the care-criminalisation nexus 194 Data collection 194 Government reports 195 Censoring the care-criminalisation nexus: The Wards Project 199 The failure of interagency collaboration 208 Failure to provide services 211 Lack of data and research 212 Conclusion 215 Chapter Seven: Conclusion 217 References 232 x LIST OF TABLES Page Table 5.1: Reports and other information on file 120 Table 5.2: Demographics – total sample 121 Table: 5.3: Demographics - the cohorts 124 Table 5.4: Trauma events and disadvantage 125 Table: 5.5 Care-specific trauma and disadvantage – the doli incapax cohort 128 Table 5.6: Average Age of 1st contact with the (CJS) (in years) 130 Table 5.7: Average Age at 1st charge (in years) 131 Table 5.8: Average Time between 1st involvement with the CJS and 1st charge 131 Table 5.9: Criminal History 132 Table 5.10: Offences in the care environment 133 Table 5.11: Custodial remand 135 Table 5.12: Sentence type based on current offence – total 138 Table 5.13: Sentence type based on current offence – by cohort 138 xi ABBREVIATIONS AAP Australian Associated Press ABC Australian Broadcasting Commission ABS Australian Bureau of Statistics ACFA Australian Foster Care Association ACSAT Aboriginal Child Sexual Assault Taskforce ACWA Association of Children’s Welfare Agencies AIHW Australian Institute of Health and Welfare ALRC Australian Law Reform Commission APPG All Party Parliamentary Group BBC British Broadcasting Commission CJS Criminal Justice System CLAN Careleavers Australia Network CREATE CREATE Foundation CPD Commonwealth Parliamentary Debates DfES Department for Education and Skills DoH Department of Health DJJ Department of Juvenile Justice HM Her Majesty’s HoC House of Commons HREOC Human Rights and Equal Opportunity Commission MCATSAI Ministerial Council on the Administration of Justice NACRO National Association for the Care and Resettlement of Offenders NSW New South Wales NSW AGD NSW Attorney Generals’ Department NSW BOCSAR NSW Bureau of Crime Statistics and Research NSW CCYP NSW Commission for Children and Young People NSW CDRT NSW Child Death Review Team NSW CG NSW Children’s Guardian NSW CSC NSW Community Services Commission NSW CWD Child Welfare Department of New South Wales xii NSW DCS NSW Department of Corrective Services NSW DAGJ NSW Department of Attorney General and Justice NSW DCW NSW Department of Child Welfare NSW DoCS NSW Department of Community Services NSW DHS NSW Department of Human Services NSW DJJ NSW Department of Juvenile Justice NSW FACS Family & Community Services NSW LRC New South Wales Law Reform Commission NSW PD LA NSW Parliamentary Debates, Legislative Assembly NSW PD LC NSW Parliamentary Debates, Legislative Council NSW YACS NSW Department of Youth and Community Services OOHC Out of Home Care PoC Parliament of the Commonwealth of Australia PRT Prison Reform Trust PSA Public Services Association QLD CG Queensland Child Guardian RCIDIC Royal Commission into Aboriginal Deaths in Custody SA CG South Australian Office of the