Joel was 12 when he ran away. He should have been in primary school. Instead, he was escaping from his residential care facility, a sometimes problematic form of group housing used in the child protection system.
Then listed as a missing child, Joel boarded a train, allegedly without a ticket. He was confronted by police and the situation escalated. Ultimately, he was charged with property damage and offences against the officers.
They were minor infractions, but they set off a chain of events that would see Joel imprisoned, despite having never been convicted of a crime. His story and subsequent appearances in a Children’s Court in New South Wales were tracked by Charles Sturt University researchers investigating children in out-of-home care and the justice system.
A court exchange recorded in their 2020 report reveals that Joel was granted bail. Because he had lost his care placement, however, he was rendered homeless and was taken to a state government child protection office to find suitable accommodation, a requirement for release under the state’s Bail Act, designed to keep vulnerable kids off the street. Again the situation escalated. He was missing his mother and, after an argument, threw a chair that hit one of the workers in the leg.
The police prosecutor, according to the report, noted that a custodial sentence was unlikely. The magistrate agreed that custody was not appropriate. But Joel was still without accommodation, so custody is where he went. It would be at least four weeks until he was released, with the Department of Communities and Justice (DCJ), whose responsibility it is to secure suitable shelter for children like Joel, failing to find something sooner.
There are possibly hundreds of children with similar stories in NSW each year, who are granted bail and yet imprisoned because they have nowhere else to go. They can technically be as young as 10 and are routinely charged with offences that would not attract a custodial sentence.
“We’re seeing children who the court is saying should be released if they have somewhere to stay, having the experience of being incarcerated from a very young age,” says James Clifford, managing solicitor of the children’s criminal practice at the NSW/ACT branch of the Aboriginal Legal Service (ALS).
“It’s one of the worst things in the system, to see children in custody because they have nowhere to go.”
Children in the protection system are at particular risk. They are often already survivors of abuse and neglect, who are cycled through multiple and sometimes unstable placements.
Children who have been in out-of-home care are more likely to experience homelessness and are grossly over-represented in the justice system. Figures from the Australian Institute of Health and Welfare show they are 19 times more likely to be under juvenile justice supervision compared with children from the general population.
“It is not acceptable that they should spend any time in custody as a result of homelessness and DCJ not having anywhere to place them,” Clifford says.
“It is something that concerns everyone who appears for these young people. These are children with complex needs. We find ourselves having to advocate really hard to say to DCJ, ‘they’ve been given bail, they’ve been told they can be released once they have accommodation, we have to find something’.”
It’s unclear how many children are affected. Figures previously obtained by peak youth homelessness body Yfoundations show that between January 2018 and January 2019, 260 children and young people were detained for up to 45 days because they did not have any accommodation. Of these, 41 per cent were Indigenous.
Attempts to update these numbers have been denied by DCJ, with the department claiming it does not believe in the reliability of its own data. It also did not answer questions as to why it can take so long to find children suitable accommodation but says its Bail and Accommodation Support Service, operated by Youth Justice NSW, works to reduce the number of young people remanded on bail because of accommodation issues.
Dr Kath McFarlane, who has written extensive reports on out-of-home care and the juvenile justice system in Australia, says the situation is unacceptable, with systemic changes urgently needed, especially when looking at children in care.
“Particularly for a child who has not yet been convicted of an offence, it’s a grave encroachment upon their fundamental human liberties,” she says, adding that children in detention are still subject to invasive searches when they have visits or access to the outside world.
“We know that detention centres are not natural environments, they’re not safe, there can be high levels of violence, and there is a need for ongoing scrutiny in many jurisdictions including in NSW to safeguard against abuses.”
This is compounded by detention’s criminogenic effect – the fact that incarceration causes or is likely to cause criminal behaviour.
In an effort to keep kids out of jail, DCJ funds several early intervention and diversion programs, including with Deadly Connections, an organisation offering culturally responsive interventions to Indigenous youth affected by the justice and child protection systems.
Its co-founder Keenan Mundine lost his parents as a young child and was separated from his siblings when he went into the care of relatives. He was 14 when he was arrested for the first time, strip-searched, fingerprinted and locked in a single-occupant cell.
“How do we program our young children who have had very vulnerable and traumatic experiences to become a responsible adult, to manoeuvre through life with their trauma? Because that trauma is never going to go away, never,” Mundine says.
“I’m a 14-year-old kid, I don’t have any control over my circumstances. I don’t have any control where I live, who I live with, where I go to school. There should have been multiple ways, not just to divert me, to be able to provide me with a safe environment, to be able to explore my trauma and what that means to me and how it’s going to impact me.”
Trauma is a key thread affecting children in the protection and justice systems. Yet carers of children, particularly kinship or relative carers, are given little to no support, and appropriate staff training in facets of the out-of-home care sector is lacking. These issues are not restricted to NSW.
Successive reports have found that inexperienced and unqualified residential care staff are left to deal with traumatised children, says Kath McFarlane, noting that police are still being called by care homes for behaviour that would otherwise be dealt with by parents.
“A classic example are the old charges of malicious damage, or property damage as it’s now known, that occurs in a residential care setting when a child does something like destroy or damage something they themselves actually own, like tearing down one of their posters from the wall, for example,” she says.
“If that minor behaviour is immediately responded to with a very authoritarian and quite harsh sanction, such as police being called and charges laid, then it can lead to a young person in out-of-home care becoming embroiled in the justice system at very deep levels really, really quickly.
“There are innumerable examples in any study that you look at where, despite authorities saying this type of response has been weeded out and doesn’t occur, children are still being criminalised and becoming embroiled in the justice system for those sorts of offences.”
Examples aren’t hard to come by. The ALS sees them regularly. “We acted for a young girl whose carers called police on her when she came back from hospital to find her cat was missing from her residential care placement,” James Clifford says.
“She started self-harming by banging her head on a fence. The carers called the police, and she was arrested for damaging the fence and she spent a night in custody.”
In NSW, a statewide multi-agency scheme known as the Joint Protocol has existed for several years to reduce this kind of contact between children in care and the justice system. A review conducted by the NSW Office of the Children’s Guardian last year, however, was scathing, noting implementation, of which DCJ is a key player, had been stifled by a lack of planning and that there was still no accurate participation data. The ALS says it’s working with the department to put the protocol into action. In recent years, the NSW government has committed more than a billion dollars annually to support out-of-home care and enhance permanency outcomes, while there is work to improve trauma-informed care within the sector.
But comprehensive change is slow, and children, meanwhile, remain trapped between worlds of abuse and abandonment and of pain and prosecution.
“Prison creates additional trauma, often adding to the trauma that people have experienced before they come into the justice system,” says Dr Mindy Sotiri, executive director of the Justice Reform Initiative.
“I have absolutely no doubt that we will look back at this particular time in our history when we incarcerated so many children, so many First Nations children, so many children from these backgrounds of disadvantage, and be absolutely horrified that this was our policy approach, especially given the evidence that none of it actually works.”
This article was first published in the print edition of The Saturday Paper on March 4, 2023 as "Jailed for being homeless".
For almost a decade, The Saturday Paper has published Australia’s leading writers and thinkers. We have pursued stories that are ignored elsewhere, covering them with sensitivity and depth. We have done this on refugee policy, on government integrity, on robo-debt, on aged care, on climate change, on the pandemic.
All our journalism is fiercely independent. It relies on the support of readers. By subscribing to The Saturday Paper, you are ensuring that we can continue to produce essential, issue-defining coverage, to dig out stories that take time, to doggedly hold to account politicians and the political class.
There are very few titles that have the freedom and the space to produce journalism like this. In a country with a concentration of media ownership unlike anything else in the world, it is vitally important. Your subscription helps make it possible.
Select your digital subscription