Breaking down barriers: children, neuro-disability and access to justice

Children who are affected by neuro-disability are overrepresented in criminal justice systems across the world. But their specific needs are rarely recognised, understood or accommodated. This blog looks at the kind of structural, procedural and attitudinal barriers that prevent them from realising their rights when they are in conflict with the law, and how they these barriers can be broken down.

Neuro-disability is an umbrella term for conditions such as attention deficit hyperactivity disorder, learning/intellectual disability, autism spectrum disorders, foetal alcohol spectrum disorders and acquired brain injuries; it is not uncommon for such conditions to co-occur. These conditions are caused by a range of different factors that compromise brain development and function including genetics, pregnancy or birth-related complications and acute injury.

Children with neuro-disabilities are a very diverse group. The nature of their impairments differs greatly and is very much affected by their social, economic and family situation. But there are some commonalities in the way impairments are manifested. They can impact on children’s ability to learn, understand, communicate and undertake every-day tasks. They can also create problems with memory and concentration, emotional functioning, impulse control and social judgement.

The problems associated with having a neuro-disability can increase the risk of a child coming in to conflict with the law. For example, research in the UK, Canada, the US and New Zealand demonstrates that there are a disproportionate number of children and young people with neuro-disabilities in conflict with the law, compared to the general population. Prior experiences of traumatic brain injury appear to be particularly common. This is far from a simple cause and effect relationship. It is likely that, in large part, children with impairments come in to conflict with the law because they have not been given the support that they need at different stages of their life.

Once they are in the criminal justice system, children with neuro-disabilities face a ‘double disadvantage’ as both children and individuals with disabilities. They are confronted by a whole series of barriers to realisation of their rights, as set out in the UN Convention on the Rights of the Child and UN Convention on the Rights of Persons with Disabilities. Some of these barriers are structural and relate to a lack of coordination between different services such as child welfare and protection, health, education and justice, with the result that they fall between the gaps and no-one takes full responsibility for them. There are also procedural barriers arising from the complexity, formality and rigidity of many criminal justice processes for children which can prevent them from participating effectively and limit their fair trial rights – for example, the use of formal legal language may mean that they have difficulties in understanding their bail conditions.

Above all, there are cultural and attitudinal barriers created by a lack of understanding amongst justice professionals. For example, when police fail to recognise that a child has a neuro-disability, then the child’s behaviour is often interpreted as a refusal to cooperate, or as sullen indifference, with the result that they are treated unfairly and their evidence is not properly understood. When a child has legal representation (and, of course, many do not) their lawyer may not be able to communicate effectively with them so that they do not tell their side of the story fully with the very real possibility of the facts of the case not being presented accurately to the court, and an inappropriate sentence being imposed. If they’re convicted, then generic rehabilitation programmes, which encourage children to think about and reflect on their behaviour, may not be appropriate or effective. When in detention, prison staff may fail to recognise or address their impairments and they can be at heightened risk of bullying and exploitation.

Removing these barriers requires recognition, understanding, resources and awareness. The right to non-discrimination is not synonymous with equal treatment for everyone. Special measures or adaptations are needed to ensure that children affected by impairments have their rights respected, protected and fulfilled in criminal proceedings, on an equal basis to children without such impairments. The following recommendations to achieve this are based upon practice in countries such as the UK and New Zealand:

• Screen children in conflict with the law for the presence of neuro-disability, and support justice professionals in identifying prominent disorders and understanding how they might affect a child’s behaviour and engagement.
• Identify what support children need at different stages, for example, one to one mentoring to prepare for court hearings or targeted support with behaviour management in detention.
• Train professionals working in the justice system so they can communicate appropriately – for example, by speaking slowly and carefully, using simple, everyday language, avoiding technical terms or abstract concepts, giving sufficient time for processing a question and by using visual aids.
• Judicial officers responsible for sentencing should take account of the relevance of neuro-disability to offending behaviour, including the potential impact on the child of difficulties with reading, processing and memory, maturity of judgement, impulsivity and an understanding of the perspectives of others.
• Prioritise the use of diversion and rehabilitation measures that include therapeutic treatments.
• Provide legal representation and legal aid to all children with neuro-disabilities when they are in conflict with the law.
• Ensure that justice responses are multi-disciplinary and multi-sectoral and include law enforcement officials, prosecutors, judges, social workers, probation services, civil society organisations, child protection and health and education workers working in close collaboration.

Above all, there is a need for greater visibility. A critical and much needed first step for governments and others is to gather information and data to identify and understand the experiences of these children – without this, the nature and extent of the justice barriers in place will continue to remain hidden from view.

For further information:

• Eileen Baldry, Damon B. Briggs, Barry Goldson & Sophie Russell (2018) ‘Cruel and unusual punishment’: an inter-jurisdictional study of the criminalisation of young people with complex support needs, Journal of Youth Studies, 21:5, 636-652
• Nathan Hughes (2015) Neurodisability in the youth justice system: recognising and responding to the criminalisation of neurodevelopmental impairment, Howard League for Penal Reform, What is Justice? Series

Illustration from PRI’s publication Voice of the Children