Dr Ailbhe O’Loughlin, Senior Lecturer at York Law School, University of York, discusses the experiences of neurodiverse children and young people in the criminal justice system and how they can be supported to transition to the adult estate.
The terms neurodiversity or neurodivergence are used within the criminal justice system to describe neurodevelopmental disorders. At least one in three people in the criminal justice system are neurodivergent compared to one in six people in the general population. Rates are particularly high amongst children and young people aged 19 or under in custody.
Around 12% of children and young people in custody have attention deficit disorder or attention deficit and hyperactivity disorder and 15% have an autistic spectrum condition. Rates of learning disability range between 23% and 32%, rates of dyslexia range between 43% and 57%, and rates of communication disorders range between 60% and 90%. According to the Youth Justice Board, 72% of sentenced children have mental health needs and 71% have speech, language or communication needs.
Neurodivergence does not necessarily mean that a person is more likely to offend. While people diagnosed with ADHD are more likely to have contact with police and are at an increased risk of conviction and imprisonment, a diagnosis alone is not a significant risk factor for offending. People with autism spectrum disorder offend as frequently, or less frequently, than people without the condition. While people diagnosed with a traumatic brain injury are 2.3 times more likely to commit a violent offence than people without a diagnosis, this risk is significantly lower than that associated with alcohol or drug abuse.
Neurodivergence is often under-recognised. Neurodivergent children and young people may be prone to make inappropriate confessions or guilty pleas if processes are not adequately explained to them or they are not given enough time to process information. Their communication style or demeanour may be misinterpreted or viewed negatively by others in court. Busy, noisy environments may lead to distress, and trigger behaviours that are dealt with through segregation or physical restraint.
The primary aims of sentencing for children and young people are to prevent offending and to have regard to their welfare. Neurodivergence can be a mitigating factor in sentencing but it depends on these factors being identified. While youth rehabilitation orders are an option at sentencing, treatment or education requirements rely upon the availability of support services. Moreover, children and young people are more likely to breach such orders if they are not supported to understand them or to adhere to their requirements.
While youth justice services are more aware of neurodivergence than adult services, information is not routinely sent across when young people are transferred to the adult prison estate. Inadequate screening in many adult prisons may result in young people falling through the cracks. Recommendations for addressing these problems include improving support for families, improving screening processes and staff training in the education and youth justice systems, and introducing a ‘child first’ or ‘whole child’ approach. However, those who are convicted of offences after they turn 18 will be sentenced as adults: an outcome that may become more likely due to significant delays in the court system.