Dr Anne-Marie Day (Manchester Metropolitan University)
Introduction
Neurodivergent children are over-represented in the youth justice system in England and Wales, and experience a range of harms that isolate, exclude and stigmatise them. But very little attention has been given to their experiences in the youth justice system. This is despite the fact that up to 90% of children in custody in England meet the diagnostic criteria for a communication disorder (Hughes and Peirse-O’Byrne, 2016 (PDF) Disabled Inside: neurodevelopmental impairments among young people in custody | Nathan Hughes – Academia.edu); 89% of children in an Australian study had at least one neurodevelopmental impairment, 36% of whom had also been diagnosed with FASD (Foetal Alcohol Spectrum Disorder) (Bower et al, 2018 Fetal alcohol spectrum disorder and youth justice: a prevalence study among young people sentenced to detention in Western Australia | BMJ Open); and one Canadian study estimated that youths with FASD were at least 19 times more likely to be incarcerated than those without FASD (Popova et al, 2011 Fetal Alcohol Spectrum Disorder Prevalence Estimates in Correctional Systems: A Systematic Literature Review | SpringerLink).
What do we mean by neurodivergence?
‘Neurodivergence’ is difficult to define and some draw upon medical definitions, as determined by the American Psychiatric Association (DSM-V). But many children will not have been assessed and diagnosed (often due to the very lengthy waiting lists), or they may not meet the criteria for a clinical diagnosis (Hughes, 2015 (PDF) Neurodisability in the youth justice system: recognising and responding to the criminalisation of neurodevelopmental impairment (researchgate.net)). This population of children are also disproportionately represented in excluded groups of children, who are invisible to education, health or social care systems (Gill et al, 2017 Making The Difference: Breaking the link between school exclusion and social exclusion | IPPR ). However, neurodivergence is generally accepted to include a range of conditions including ASD (autism spectrum disorder); ADHD (Attention Deficit Hyperactivity Disorder); FASD; and Speech, Language and Communication Disorders.
How is the Youth Justice System harming neurodivergent children?
There is relatively little research into the experiences of neurodivergent children at key stages of the youth justice system. A recent Criminal Justice Joint Inspection (2021) Neurodiversity in the criminal justice system: A review of evidence – HMICFRS (justiceinspectorates.gov.uk) considered the experiences of neurodivergent adults in the criminal justice system and found that there were ‘serious gaps, failings and missed opportunities at every stage of the system’ (CJJI, 2021: 10). For example, issues at the police station included the failure to provide an appropriate adult (Talbot, 2008 Prisoners’ voices: experiences of the criminal justice system by prisoners with learning disabilities | Emerald Insight) to advise and advocate as needed (CJII, 2021); and challenging communication styles in interviews (Reid et al, 2020 Fetal alcohol spectrum disorder: the importance of assessment, diagnosis and support in the Australian justice context: Psychiatry, Psychology and Law: Vol 27, No 2 (tandfonline.com); Rollins, 2014 Narrative Skills in Young Adults With High-Functioning Autism Spectrum Disorders – Pamela Rosenthal Rollins, 2014 (sagepub.com); Thorne and Coggins, 2016 Cohesive Referencing Errors During Narrative Production as Clinical Evidence of Central Nervous System Abnormality in School-Aged Children With Fetal Alcohol Spectrum Disorders | American Journal of Speech-Language Pathology (asha.org)).
Adverse experiences continue at court, with a higher likelihood of a neurodivergent child being remanded in custody (CJII, 2021); reduced understanding of court processes, why they are in court, or the implications of legal decisions (Talbot, 2008; Hughes, 2015).
For children on community sentences, the focus on cognitive behavioural techniques to address ‘offending behaviour’ has been found to be inappropriate for many neurodivergent children (Snow and Powell, 2012 Youth (in)justice: Oral language competence in early life and risk for engagement in antisocial behaviour in adolescence (aic.gov.au)), leading to disengagement with a youth justice order (Hughes, 2015), and risking further criminalisation through breach proceedings.
What about in custody?
Imprisoning neurodivergent children has been repeatedly highlighted as an area of concern internationally, (Diehl et al, 2014 Neural correlates of language and non-language visuospatial processing in adolescents with reading disability – ScienceDirect; Hughes and Peirse-O’Byrne, 2016) with the busy and noisy wings, cell sharing and changes to the daily routine being particularly distressing and harmful (CJJI, 2021:12; Day, 2022 Disabling and criminalising systems? Understanding the experiences and challenges facing incarcerated, neurodivergent children in the education and youth justice systems in England – ScienceDirect). Neurodivergent adult and child prisoners also experience higher levels of restraint, isolation, segregation, bullying, fear, depression and anxiety than other inmates (Day, 2022; Lewis et al, 2016 (PDF) Improving the management of prisoners with autistic spectrum disorders (ASD) (researchgate.net); Young, 2018 (PDF) Improving the management of prisoners with autistic spectrum disorders (ASD) (researchgate.net); Talbot, 2008; Gormley, 2021 Hidden Harms of Prison Life for People with Learning Disabilities | The British Journal of Criminology | Oxford Academic (oup.com); Loucks, 2007 No one knows: offenders with learning difficulties and learning disabilities: the prevalence and associated needs of offenders with learning difficulties and learning disabilities | The British Library (bl.uk)). This has been found to have a negative impact on some of the children’s mental health, leading to incidents of self-harm, and suicidal thoughts (Day, 2022).
The isolation, exclusion, and stigmatisation of neurodivergent children permeates the youth justice system, causing one to conclude, and supporting recent UN guidance, that neurodivergent children ‘should not be in the child justice system at all’ (Hughes et al, 2020: 163 Ensuring the rights of children with neurodevelopmental disabilities within child justice systems – ScienceDirect).
Next Steps
Moving forward, we need to turn our attention away from the children’s behaviours, and towards the systems that label, isolate and exclude. The Youth Justice System as it stands is traumatising and harming neurodivergent children. There are a number of reasons for this. Firstly, the lack of awareness from front line staff working with children in a range of settings suggests that there is an urgent training need. Training should focus on what neurodivergence is, how it may impact on children’s behaviours and communication styles, where to go for advice and assistance, and some basic techniques covering communication styles and behaviour management. Secondly, there is insufficient screening for neurodivergent conditions. This should form part of the assessment of children at the entry point into the youth justice system. The inclusion of a specialist to conduct the screening within multi-agency youth justice teams would facilitate this and allow alternative, neurodiverse ways to work with children to be identified. Finally, once a child is identified as neurodivergent, they are propelled into a system that offers no support, and further harms them. A comprehensive evaluation of the whole youth justice system – from initial receipt into the police station, through to support during and after sentence is urgently needed. Failure to do so will only ensure that the shameful legacy we have established will continue.
References
Bower, C., Watkins, R. E., Mutch, R. C., Marriott, R., Freeman, J., Kippin, N. R., … & Giglia, R. (2018) ‘Fetal alcohol spectrum disorder and youth justice: a prevalence study among young people sentenced to detention in Western Australia’, BMJ open, 8(2), e019605.
Criminal Justice Joint Inspection (2021) ‘Neurodiversity in the CJS: A Review of the Evidence’, HMSO: London.
Day, A-M (2022) ‘Disabling and criminalising systems? Understanding the experiences and challenges facing incarcerated, neurodivergent children in the education and youth justice systems in England’, Forensic Science International, https://doi.org/10.1016/j.fsiml.2022.100102
Diehl, JD, Frost, SJ, Sherman, G, Mencl, WE, Kurian, A, Molfese, P (2014) ‘Neural correlates of language and non-language visuospatial processing in adolescents with reading disability’ Neuroimage, 101, 653–666.
Gill, K, Quilter-Pinner, H and Swift, D (2017) ‘Making the difference: Breaking the link between school exclusion and social exclusion’, London: Institute for Public Policy Research
Gormley, C (2021) ‘The Hidden Harms of Prison Life for People with Learning Disabilities’, The British Journal of Criminology, 20, 1-18.
Hughes, N (2015) ‘Neurodisability in the youth justice system: recognising and responding to the criminalisation of neurodevelopmental impairment’, Howard League What is Justice? Working Papers 17/2015, Howard League for Penal Reform: London
Hughes, N and Peirse-O’Byrne, K (2016) ‘Disabled Inside: Neurodevelopmental impairments among young people in custody’, Prison Service Journal, July 2016, 226, 14 – 21
Hughes, N et al (2020) ‘Ensuring the rights of children with neurodevelopmental disabilities within child justice systems’, The Lancet Child and Adolescent Health, 4, 163 – 166.
Lewis, A, Hughes, C and Turner, K (2016) ‘Improving the management of prisoners with autistic spectrum disorders (ASD)’, Prison Service Journal, July, 226, 21 – 26
Loucks, N (2007) ‘The prevalence and associated needs of offenders with learning difficulties and learning disabilities’, No-one Knows Literature Review, London: Prison Reform Trust
Popova, S., Lange, S., Bekmuradov, D., Mihic, A., & Rehm, J. (2011) ‘Fetal alcohol spectrum disorder prevalence estimates in correctional systems: A systematic literature review’ Canadian Journal of Public Health, 102(5), 336-340.
Reid, N., Kippin, N., Passmore, H., & Finlay-Jones, A. (2020). ‘Fetal alcohol spectrum disorder: the importance of assessment, diagnosis and support in the Australian justice context’ Psychiatry, Psychology and Law, 1-10. doi: 10.1080/13218719.2020.1719375
Rollins, P.R. (2014) ‘Narrative skills in young adults with high-functioning autism spectrum disorders’ Communication Disorders Quarterly, 36(1), 21–28. doi:10.1177/1525740114520962
Snow, P and Powell, M (2012) ‘Youth (in)justice: Oral language competence in early life and risk for engagement in antisocial behaviour in adolescence’, Australian Institute of Criminology, Trends and issues in crime and criminal justice, No. 435, April 2012.
Talbot, J (2008) ‘Prisoners Voices: Experiences of the criminal justice system by prisoners with learning disabilities and difficulties’, No-one Knows Report and Final Recommendations, London: Prison Reform Trust.
Thorne, JC and Coggins, TE (2016) ‘Cohesive referencing errors during narrative production as clinical evidence of central nervous system abnormality in school-aged children with fetal alcohol spectrum disorders’ American Journal of Speech-Language Pathology, 25(4), 532–546. doi:10.1044/2016_AJSLP-15-0124
Defending Vulnerability 