Care-criminalisation: The involvement of children in out-of-home care in the New South Wales criminal justice system
| Published date | 01 September 2018 |
| DOI | 10.1177/0004865817723954 |
| Author | Kath McFarlane |
| Date | 01 September 2018 |
| Subject Matter | Articles |
Article
Care-criminalisation:
The involvement of children
in out-of-home care in the
New South Wales criminal
justice system
Kath McFarlane
Charles Sturt University, Australia
Abstract
This article discusses the involvement in the New South Wales criminal justice system of a
cohort of children in out-of-home care. The paper reports the findings of a four-year research
project that investigated the relationship between the child welfare and justice systems as
experienced by a cohort of children in the New South Wales Children’s Court criminal
jurisdiction. Analysis of 160 case files identified that children in out-of-home care appeared
before the Children’s Court on criminal charges at disproportionate rates compared to
children who were not in out-of-home care. The out-of-home care cohort had a different
and negative experience of the justice system, entering it at a significantly younger age and
being more likely to experience custodial remand, than children who had not been in out-of-
home care. While both cohorts shared many of the risk factors common to young offenders
appearing before the Children’s Court, the out-of-home care cohort experienced significant
additional disadvantage within the care environment (‘care-criminalisation’), such that living
arrangements designed to protect them from harm instead created the environment for
offending. The paper concludes by arguing that a paucity of research exists regarding the
drivers and dynamics of care-criminalisation and that more research is needed to explore the
criminogenic impacts of a childhood spent in out-of-home care.
Keywords
Care-criminalisation, Children’s Court, criminal justice system, foster care, kinship care,
out-of-home care, residential care
Date received: 22 February 2017; accepted: 10 July 2017
Australian & New Zealand
Journal of Criminology
2018, Vol. 51(3) 412–433
!The Author(s) 2017
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DOI: 10.1177/0004865817723954
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Corresponding author:
Kath McFarlane, Centre for Law and Justice, Charles Sturt University, Bathurst, New South Wales 2795, Australia
Member, Institute of Land, Water and Society (ILWS).
Email: kath1mcfarlane@gmail.com
Introduction
Children in out-of-home care
In Australia, the State may provide alternative accommodation, temporary care, or
financial or other welfare support to a child who is unable to live with their family for
a period of time due to abuse, neglect, ‘illness, drug and alcohol abuse, domestic violence
or poverty’ (NSW Family & Community Services, 2014). Through an order of the New
South Wales (NSW) Children’s Court, the State may also remove children from their
parents’ custody and place them in alternate living arrangements (commonly known as
‘out-of-home care’ (OOHC)), for periods ranging from a few weeks through to the time
until adulthood at age 18 is reached (Children and Children (Care and Protection) Act
1998 (NSW)).The State contracts out the provision of OOHC to non-government ser-
vice providers – both charitable and for-profit – who oversee a range of care models
including kinship care (placement with relatives), foster care (paid carers in family-like
situations), and residential units or group homes, which are staffed by paid workers and
accommodate up to six children at any one time.
The Australian OOHC population is growing at a rapid rate, having risen by just over
17% in the past four years. This increase is likely the result of a combination of children
entering care while others are remaining in care for longer periods of time (CFCA, 2016).
As of 30 June 2016, some 46,448 children were in care nationwide. Almost 17,000 of
these children identified as either Aboriginal or Torres Strait Islander. Indigenous chil-
dren are over-represented in care nationwide: at 9.8 times the rate of non-Indigenous
children (CFCA, 2016). The OOHC population is a very young cohort, with over half of
all children in care under nine years of age. Despite their youth, the vast majority of
children have lived in care for more than 12 months. Most children live with relatives
(47.3%), in foster care (40.4%), or other type of home-based care arrangements.
Approximately 5.5% of children live in residential care placements (CFCA, 2016).
Involvement in the criminal justice system
A correlation between an experience of OOHC and involvement in the CJS has been
identified in Australian research. In NSW for example, children in OOHC have been
found to be disproportionately represented in the criminal jurisdiction of the NSW
Children’s Court, with estimates ranging from 19% (Wong, Bailey, & Kenny, 2009) to
34% (Fernandez, Bolitho, & Hansen, 2014). They are also disproportionately represented
on community orders such as good behaviour bonds and community service orders
(CSOs) (Kenny et al., 2006, 2008) and in the State’s juvenile detention centres
(Cashmore & Paxman, 1996; Indig et al., 2011). The overlap between the OOHC and
justice systems has also been shown to extend into early adulthood: a national survey of
15- to 21-year-old young people who had recently left care found that over a fifth of female
and almost half of the males had received a warning, caution, or charge, compared to just
five per 1000 children (0.5%) in the general population (McDowall, 2009). Other studies
have confirmed that careleavers are likely to experience regular and negative contact with
police (Mendes, Baidawi, & Snow, 2014; Raman, Inder, & Forbes, 2005).
International research has also identified a correlation between OOHC and invol-
vement in the CJS. For example, in Canada, a study of over 50,000 children
McFarlane 413
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