The UK has one of the highest youth reoffending rates in the world. Becca Sproston explores the overrepresentation of neurodivergent children in the criminal justice system and the changes needed to make it fit for purpose.
During the criminal trial of two children found guilty murdering trans girl Brianna Ghey, one thing stood out.
Through the reading of evidence and witness testimony, both suspects could be seen playing with fidget toys, doing a crossword, and Boy Y even wrote his answers to questions.
It was a site that sparked outrage from members of the public and the press.
How could two children show so little remorse? In the face of such anguish for the family, how could they be considering four-down and two-across?
But the judge had given such privileges because Boy Y has been diagnosed with autism spectrum disorder and is non-verbal and Girl X has traits of autism and ADHD.
And these suspects are not alone.
Of children cautioned or sentenced for a criminal offence, 80% had a diagnosed neurodivergent condition by the age of fifteen according to Department for Education figures from last year.
That’s four in five children.
The number rises even higher – to 87% – for those reprimanded for serious violent offences.
Yet rarely are accommodations made for this neurodiversity, a term intended to help move away from a medical model of disability focusing on “deficits” towards a social model which recognises strengths.
From March 2021 to March 2022, the youth reoffending rate was 31.2%, though this is likely to have been impacted by the Covid pandemic. While there has been an overall downward trend in reoffending, the 31.2% figure still puts youth reoffending rates higher than adults.
Dr Anne-Marie Day, Criminology Lecturer at Keele University, is a specialist in youth justice.
She is highly critical of the criminal justice system for adulterising neurodiverse children and contributing to high levels of reoffending.
She said: “The criminal justice system is a horrible system for any child. It’s traumatic.
“It’s designed for adults and the adaptations made for children are wholly inappropriate, wholly insufficient and lead to many kids in the system being abused and traumatised. For neurodivergent kids, they experience the harms of the criminal justice system.”
Causation
Whenever a crime is committed, the first question asked is usually “why”.
Why did they do it? Why would anyone be that cruel?
In reality, it’s much more complex.
For neurodivergent children, the warning signs which indicate increased risk of offending are acute.
Children in England and Wales with an identified special educational need (SEN) are at least seven times more likely to be excluded from mainstream education than their peers. And this figure does not include “hidden exclusions”, where schools encourage parents to home-educate to boost their grades and OFSTED reports.
In late primary school and into secondary school, neurodiverse children can present with behaviours considered “difficult” or “challenging”. Rather than uncovering the underlying cause of these mannerisms, staff often focus on the disruptive behaviour itself.
This is not to place all the blame on teachers. Schools are underfunded, overstretched, and suffer from a lack of training to identify and respond to neurodiversity.
But the result can be catastrophic for young people – exclusion, Pupil Referral Units, and isolation.
This is compounded by these young people’s increased risk of peer pressure. Neurodiversity can promote a heightened desire in a young person wanting to be accepted by their peer group.
Steve Chalke, founder of charity Oasis, which is opening the UK’s first secure school, said: “It’s the failure of our understanding of young people that – the failures of our education system – that mean that children who are in most need for our care, attention and inclusion in our schooling system find themselves through no fault of their own vilified, isolated, excluded, not understood and very often in the justice system.”
The police station
The police station can be a terrifying experience for anyone arrested, let alone neurodivergent people.
For children, this is even worse.
A study by researchers at the University of Nottingham found that children were held in custody for an average of 11 hours and 36 minutes.
Left in a cell for 696 minutes, it’s little wonder that children become overwhelmed and triggered. Their “challenging” behaviours can be misinterpreted by the police as non-compliance, meaning they are more likely to be criminalised.
And while neurodivergent people are supposed to be provided with an appropriate adult to help guide them through the police station process, a National Autistic Society report on the experiences of autistic teenagers in the youth justice system in England found that 46% were not provided with an appropriate adult.
The court
Moving into the court, in most cases, virtually no modifications are made for children.
The Carlile Inquiry (2014) into the Youth Courts in England and Wales found that neurodiverse children often did not understand the legal process and found courts overwhelming environments.
They are more likely to plead guilty, not fully understanding what is being asked of them.
The accommodations made for Girl X and Boy Y in the Brianna Ghey trial are rare.
Sentences
All children serving sentences in the community receive a speech and language assessment, which may pick up on neurodiversity. But even if this is identified, evidence shows that findings are frequently not acted upon.
And Dr Anne-Marie Day said: “Arguably if it’s not been picked up before it’s unlikely to be at this stage and it’s way too late. It should have been picked up in primary school.”
In addition, she says that the cognitive behavioural techniques often used in rehabilitation schemes are inappropriate for many neurodiverse children, requiring an understanding of thoughts and feelings that can be challenging.
For roughly 500 children who find themselves in youth custody in the UK, the busy noisy wings of prisons, cell-sharing and changes to daily routine can be overwhelming.
Prison staff struggle to interact with children with neurodiversity and Comprehensive Health Assessment Tool screenings are not acted upon.
So what’s the solution?
Dr Anne-Marie Day is advocating for early screening of children in primary school for neurodiversity to help prevent exclusions and enable greater support to be put in place.
Likewise, greater training for police officers and court staff can help make the criminal justice process more accessible for young people.
As Day said: “We need specialised trained professionals throughout the system that work with children and neurodiverse children from the get go.”
And a new approach to custody is also being pioneered.
Oasis Restore will be the UK’s first secure school.
Located in Kent, it is an alternative to young offenders institutes and secure training centres. Bars and cells are replaced with student flats, prison guards with youth workers and teachers.
Steve Chalke, Oasis’s founder, said: “Oasis Restore is a revolution in youth justice because it’s finally working out that you can’t punish people to help them. You can’t help someone by institutionalising them and you can’t help someone by giving them anything less than a bespoke approach to them.”
With education focused on grade not age, and a focus on connecting with young people to help reform them, the new secure school will drive forward changes to the criminal justice system.
In Chalke’s words, “Oasis Restore is in the vanguard of pushing hard for a better understanding of neurodivergence and mental health. As it dawns, the prejudices will fall away but it’s going to be a battle.”
But while some change is taking place, it is clear that a deeper cultural understanding of criminal justice is needed.
Accommodations made for suspects on trial for the murder of Brianna Ghey’s have sparked significant backlash with accusations of “soft” treatment and disrespect to Ghey’s family.
So while structural changes may be needed to make the criminal justice system better able to accommodate neurodiverse people, a greater societal awareness is needed of neurodiversity to make these changes publicly accepted.
