Children in group homes face criminal charges for breaking coffee cups, says report

Legal Aid Victoria finds residential care providers call police to deal with behavioural issues of children in their care
Children in group homes in Victoria are being charged with criminal damage and detained in custody for incidents as minor as breaking coffee cups and throwing a pen at an air-conditioning unit, a new report has found.

The report, released on Wednesday by Legal Aid Victoria, found that residential care providers were calling police to deal with behavioural issues of children under their care, often initiating their first contact with the youth justice system.

It analysed data from Legal Aid’s representation of children aged 11 to 17 over the past five years and found that of the children it represented in child protection matters, a third later returned for assistance with criminal charges.

It also found that children who were placed in some form of out-of-home care as a result of those child protection matters were twice as likely to face criminal charges as those who lived with their families.

According to anecdotal evidence from Legal Aid lawyers, the report said, most of those charged with criminal offences were in residential care, meaning they were placed in a group home under the care of child protection workers.

Legal Aid has used the report to call on the Andrews government to adopt an inter-agency protocol to reduce the contact of young people in residential care with police and the justice system, similar to protocols in place in New South Wales and Britain.

The Department of Health and Human Services has already established a working group with Legal Aid, police, residential care providers and the Centre for Excellence in Family and Child Welfare to discuss how to address the overrepresentation of children from the out-of-home care system in the justice system.

“Children who have been victims of serious neglect, abuse and trauma are at much greater risk of both coming into state care and of becoming involved in youth crime,” a department spokeswoman said.

Nicole Rich, director of family, youth, and children’s law at Legal Aid Victoria, said the report was sparked by lawyers raising concerns about children being charged over incidents that would not result in a call-out to police if they occurred in the family home.

“They are engaging in behaviour that there’s no doubt is challenging behaviour, and if they do it in a family home you would say it’s bad behaviour, but you would not see the police called,” Rich told Guardian Australia. “But in a residential care situation, which we acknowledge is a workplace, they do have police called.”

Rich said that while the juvenile offenders were most commonly charged with theft, children who had been in out-of-home care were most likely to be charged with property damage. Of those seen by Legal Aid, 83% received their first charge within 12 months of being in care, meaning that they had not been in contact with the justice system before.

Once a child or young person was charged and brought before the youth justice system, Rich said, it started a cycle that made it easier for them to return.

“Being in contact with the youth justice system is in itself a really significant factor in returning to the youth justice system,” she said.

Case studies in the report include:

  • A 15-year-old girl charged with aggravated burglary and criminal damage for breaking into the internal office of the residential unit and damaging a cabinet and some papers. On another occassion, she was charged with criminal damage for breaking a coffee cup belonging to the unit and damaging some of her own personal possessions, although the charges for damaging her own things were withdrawn.
  • A 14-year-old boy charged with criminal damage for once throwing a coffee cup at the wall, and later throwing a plate at the wall.
  • A 13-year-old girl from a violent home charged with assaulting a care worker. She had slapped the worker after they tried to drag her out of bed and said her allowance would be deducted for “aggressive behaviour”.
  • An 11-year-old boy with autism, an intellectual disability and ADHD, who was charged with assaulting police and resisting arrest after he refused to let go of his mother after a weekend visit. His mother had told care workers she was happy to remain until he calmed down but they called police who “pulled him off his mother, kicking and screaming.” The same boy was later charged with assaulting a care worker and discharging a missile for throwing a rubber thong, a rubber sink plug and a whisk at a care worker. He received a total of 25 charges during his few months in care.

The typical scenario, the report said, was that the young person would have a minor confrontation with care workers over something such as a failure to comply with an instruction. That triggered an outburst by the young person and a “display of challenging behaviour” and the unit staff called police.

“In many instances, the attendance of the police further escalates the situation, with the young person then sometimes accruing additional charges for resisting arrest or assaulting police,” the report said.

There are 240 residential care units in Victoria. As of this month 442 young people were in residential care, out of a total of about 8,000 children in all forms of out-of-home care.

The Andrews government has moved to reduce the number of children in residential care, moving 140 young people out and into other forms of care in June, but there is still no formal structure to stop the flow of young people in care from going into youth detention.

A spokeswoman from the department said the government was investing $168m to move from a crisis response model to an early intervention model for child protection matters.

According to a 2016 report by the Australian Institute of Health and Welfare, children in the child protection system were 14 times more likely to be involved in the criminal justice system than children who were not in the child protection system, and children in the justice system were 15 times more likely to also be known to the child protection system than children who were not in the justice system.


Residential care children getting criminal records for minor incidents, report finds

Benjamin Preiss


The teenage girl hurled the phone against the wall and it smashed into pieces. She was furious that a worker in the residential house where she lived had disconnected it while she was in the middle of a conversation.

So the residential home worker called the police, who charged her with criminal damage and discharging a missile.

Children placed in out-of-home care are considered among Victoria's most vulnerable.

Children placed in out-of-home care are considered among Victoria's most vulnerable. 

If the girl had grown up in a typical family household, her parents might have shouted at her or sent her to her room. But Jess* had to be removed from her childhood home after suffering torturous abuse at the hands of a sadistic stepfather.

Many young people who cannot live with their parents are being slapped with criminal records for relatively minor outbursts like smashing a cup or a sink plug, a report from Victorian Legal Aid shows. 

And too many children are entering the legal system for incidents that traditional families would handle at home, says Victoria Legal Aid executive director of children's law, Nicole Rich.  

The report, based on a review of Victoria Legal Aid's own data, showed that charging children increased the likelihood of future arrests and established a "precedent of interaction" with the justice system.

"These are kids who need a lot of support and sometimes they do have challenging behaviours," she said.

Victoria Legal Aid wants new procedures for residential care staff to avoid the need to call police and risk criminal charges.

But Ms Rich said it was appropriate for residential care staff to call police in some cases.

"There are clearly going to be incidents that do warrant a police response particularly if staff or other residents are at risk," she said.

The report found 30 per cent of children Victoria Legal Aid assisted in out-of-home care returned for help to deal with a criminal matter. By comparison, just 18 per cent returned for legal help among those who remained with their parents.

Some children from out-of-home care were spending lengthy periods in custody on remand even if charges are subsequently withdrawn.

The report was launched as debate rages about the state of Victoria's youth justice system after recent riots in youth detention centres.

Children placed in out-of-home care are considered among Victoria's most vulnerable, many having experienced traumas that can include sexual, physical and emotional abuse.

The report said there are currently 8000 children in Victoria living in out-of-home care, including those in residential and foster care or living with relatives other than their parents.  

Residential care is provided by paid staff, typically in group homes with up to six children.

In residential care, Jess resorted to drugs and wagging school because she felt nobody cared about her. She received her first criminal charge after a scuffle with a worker but that was dropped.

Fairfax Media has contacted the Department of Health and Human Services for comment. 

Victoria Legal Aid did praise a state government overhaul of residential care, which it said would go some way towards addressing problems in the system.

Although the study did not distinguish between different types of care, the service said anecdotal suggestions indicated children in residential care were most likely to be charged. 

A spokeswoman for the department said the government was working to improve "outcomes" for children in out-of-home care and reduce and reduce the number of young people in residential care. 

She said the government's "ambitious" $168 million reform plan was introduced last year and would shift the focus from crisis prevention to early intervention. 

*Not her real name.