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Abstract

Over-reliance on police by Out-Of-Home Care (OOHC) service providers is a key contributor to the criminalisation of children in care. Drawing on interviews across judicial, legal, youth justice and children's advocacy sectors in New South Wales, Victoria, and England and Wales, we propose a conceptual model which explains the criminalisation of trauma via policing and residential care policies that emphasise risk mitigation, and which are currently devoid of therapeutic practice. Criminalisation of trauma is contingent on surveillant assemblages positioning vulnerable children as risks to themselves, others, and property. This approach justifies criminalising responses with deleterious impacts on children and staff within both systems. We discuss the need for systemic reform that shifts from perceptions of children in residential care as “risks” that need to be managed via carceral logics. We argue the case for a system that instead emphasises the importance of therapeutic responses for vulnerable children and families involved in child protection and OOHC systems.

Keywords

Policing out-of-home care dual-system impacted children criminalisation of children

Introduction

Children in residential care, which is also referred to as congregate or group care, represent one of the most vulnerable cohorts in the Out-Of-Home Care (OOHC) system. Many have experienced significant trauma due to maltreatment, abuse and/or neglect in the home, and often mistreatment and abuse while in care, including multiple “failed” foster care placements (Gerard et al., 2023). Residential care is often viewed as the option of “last resort” (Holmes et al., 2018) and in Australia, continues to represent the smallest component of the OOHC system. In 2022–2023 there were 4,310 children in residential care placements across Australia, accounting for 9.5% of the total OOHC population (Australian Institute of Health and Welfare [AIHW], 2024a). In contrast, there were 15,127 (33.4%) children in foster care and 24,556 (54.2%) children in kinship care placements during the same period.¹ Despite ongoing concerns about its traumagenic and criminogenic impacts (Gerard et al., 2023; Paterson-Young et al., 2024) the residential care population across Australia has almost doubled in the past 10 years (AIHW, 2014, 2024a). First Nations² children are grossly over-represented at all stages of the child protection process and in all forms of OOHC across every state and territory. As with non-Indigenous children, the population of First Nations children in residential care across Australia increased by 90% from 2017–2018 to 2021–2022 (AIHW, 2024b).

A similar pattern is observed in England and Wales, in which approximately 91,040 children were categorised as “looked after”³ (NSPCC, 2024). Placement types vary for children in England and Wales, with foster placements being the primary source placement, which includes kinship care (68% England; 69% Wales). However, residential accommodation⁴ (19% England; 7% Wales) remains high, with the number of children experiencing residential placements in England and Wales doubling since 2011 (Larkham, 2024).

While residential care models vary, most Australian states and territories adopt a four-bed model staffed by paid carers on a 24/7 roster system (Ainsworth & Bath, 2023). In England, models vary depending on the level of care required, with small “home-style” environments using specialised staff to provide 24-hr care and support (Holmes et al., 2022). The number of children in residential care homes in England can also vary depending on the environment, with 44% of homes registered in 2019 accommodating three or four children, while less than 3% accommodated over 10 children (Holmes et al., 2022). These structures mean that groups of highly traumatised children and teenagers are placed together in an environment that deviates from the normative expectations of a functioning home (Colvin et al., 2018; McFarlane, 2018). This results in sustained criticism that residential care directly contributes to poor psychosocial, health and wellbeing outcomes across the life course (see, e.g., Sacker et al., 2021).

Research shows that children in residential care are at increased risk of police and youth justice involvement by virtue of being in care (Paterson-Young et al., 2024; Shaw & Greenhow, 2021). While several factors contribute to the criminalisation of children in care, the nexus between residential care service provision and policing generates the most salient form of criminalisation. Understanding the intersecting mechanisms and processes contributing to such criminalisation may enable more targeted and effective strategies to assist these vulnerable children. While a growing body of literature focusses on factors that predict involvement with the criminal legal system, the characteristics of dual system⁵ impacted children and their unique vulnerabilities (Baidawi & Piquero, 2020; Herz et al., 2019; Malvaso et al., 2019), limited research explores the intersection of specific processes across multiple systems that contribute to the criminalisation of children in care. This article seeks to address this gap by examining the processes of criminalisation at the intersection of policing and residential care.

The article begins with an overview of extant literature on care criminalisation, while focussing on the under-studied issue of surveillance. We then present the results of a qualitative study that resulted in the development of a conceptual model to articulate the way policing and residential care services draw on similar carceral logics that ultimately result in the criminalisation of trauma. We conclude with a discussion of the implications of our model for policing and residential care service provision by focussing on the importance of developing therapeutic systems that emphasise diversion.

Background and theoretical contexts

“Care-criminalisation” (McFarlane, 2018) refers to ways children's behaviour in residential care is managed through criminal justice interventions. This includes an over-reliance on police assistance by residential care providers, and formal responses that focus on crime prevention and control rather than de-escalation (McFarlane, 2018; Paterson-Young et al., 2024). Extensive research shows that children in residential care are disproportionately represented as dual-system clients (Baidawi & Ball, 2023a; Herz et al., 2019; Prison Reform Trust, 2016; Sentencing Advisory Council, 2020; Staines, 2017). Relative to non-care-experienced peers, children in residential care are more likely to have police contact, enter the youth justice system at younger ages, be charged with more serious crimes, and be sentenced to lengthy periods of detention (Malvaso et al., 2019; Sentencing Advisory Council, 2019). Particularly vulnerable sub-groups, such as First Nations children in Australia (AIHW, 2024a, 2024c), Black and other minority youth in England and Wales (Prison Reform Trust, 2016), and children who are neurodivergent and/or who have intellectual disabilities (Baidawi & Piquero, 2020) are disproportionately represented among dual system impacted groups.

The criminalisation of children in residential care occurs within inherently anti-therapeutic systems that lack trauma awareness (Paterson-Young et al., 2024). To mitigate some of these systemic challenges, various jurisdictions have introduced formal protocols between police, child protection and residential care services to reduce the criminalisation of children, by minimising the over-criminalisation of non-violent behaviour. New South Wales (NSW) and Victoria have developed joint protocols (Department of Communities and Justice, 2019; Department of Health and Human Services, 2020) that emphasise the importance of trauma-informed responses to children in care, and the need for greater flexibility and proportionality by police and residential care providers when responding to children's behaviour. The Victorian protocol emphasises the importance of safety for children and staff when encountering incidents in residential care homes and promotes the development of “decision-making guidelines” for the residential care sector to reduce the reliance on police to resolve minor incidents (Department of Health and Human Services, 2020). The NSW protocol places a much greater emphasis on interagency data sharing to enable police to exercise greater discretion to divert children in residential care from more formal criminal justice responses (Department of Communities and Justice, 2019). To date, however, the NSW protocol has not been formally evaluated, while the Victorian protocol has yet to be implemented.

A similar protocol was introduced in England and Wales following the Lammy Review into the over-representation of children in care in the youth justice system (Hunter et al., 2024). As with the protocols in NSW and Victoria, the aim of this review was to address some of the factors that contributed to the over-policing and criminalisation of children in residential care. Unlike Australian protocols which are jurisdiction-specific, the U.K. protocol reflects a national approach. However, Hunter et al. (2024) found significant inconsistency in the way the protocol was operationalised across local government areas, leading to variations in police responses to children in residential care. Of greatest concern was the increased reliance on police surveillance of children in residential care as “baked into agreements” (Hunter et al., 2024, p. 64, emphasis in original) by formalising the use of local police teams to conduct “regular visits … for the purpose of gathering intelligence, identifying risk of offending and information sharing, including disclosure of non-serious incidents within placements” (Hunter et al., 2024, p. 62).

While an expansive body of literature highlights the centrality of surveillance as a key element in contemporary policing and security provision (Dafnos et al., 2016; Ferguson, 2017; Schuilenburg, 2015), including its role in the operation of interagency control assemblages (Haggerty & Ericson, 2000), its use in OOHC is under-explored. One rare exception is Hardy's (2014) work that drew on a Foucauldian framework to argue that surveillance is embedded within residential care shift work structures. Specifically, shift records document a power/knowledge assemblage that focuses on how risks to staff and residential care organisations are to be mitigated, rather than emphasising how children should be kept safe. In other words, these formal documents provide records of surveillance in residential care settings that represent a child as an object of risk to staff, rather than as an individual within a more complex relational dynamic of care (Hardy, 2014). Along with the purposive or adapted architecture of an OOHC community-based residence, which is often conceived in the spirit of the panopticon to optimise the surveillance of and power over children, administrative records examined by Hardy (2014) suggest a more nuanced or subtle mode of surveillance through selective forms of accountability reporting (Molnar & Warren, 2020) that add to other demographic information contained in legal case records or related official government reporting sources (see Dafnos et al., 2016, pp. 322–323). More recently, Edwards et al. (2023) utilised anti-carceral theory to highlight how Black children in the Canadian OOHC system are subjected to discriminatory and restrictive forms of therapeutic “care” enacted through carceral and surveillance logics that necessitate a formal criminal justice response (Edwards et al., 2023). In this sense, surveillance acts much in the same way as it does through conventional policing and securitisation processes that disproportionately target disadvantaged or minority populations as crime suspects (Ferguson, 2017) to magnify their status “as risks to be watched and policed” (Dafnos et al., 2016, p. 323).

Relating surveillance to the criminalisation of children in residential care reflects broader societal shifts grounded in a neoliberal logic that promotes responsibilisation, privatisation, commodification and the emphasis on the identification, prevention and management of identifiable risks, or an “ontological insecurity” that promotes risk aversion via increasingly bureaucratised processes (Cunneen, 2015/2016, p. 34; see also Arrigo & Sellers, 2021; Shaw & Greenhow, 2021; Taylor, 2018). Just as governing through crime validates intrusive forms of surveillance (Simon, 2007) to simultaneously identify and protect against real and potential risks (Taylor, 2018), we contend that children in residential care are exposed to an equivalent “adjacency” (Morgan, 2022) when experiencing the assemblage of control relationships involving child protection authorities, OOHC and youth justice systems. In this sense, physical and bureaucratic surveillance processes become embedded within this assemblage to secure the OHHC system and its staff through an understanding of risk situated within children themselves and the environments they inhabit (McCausland & Dowse, 2022). We contend that children in residential care are at increased exposure to enhanced surveillance by both care and policing systems as objects of risk and thus objects of criminalisation, by virtue of the impacts of significant trauma on their emotional and behavioural regulation (Liebenberg et al., 2015; Victorian Legal Aid, 2024).

Rationale

Care-criminalisation appears firmly grounded in residential care policies and practices that rely on police intervention to manage disruptive behaviour (McFarlane, 2018). This is magnified by the absence of suitably qualified or trained staff who function within a broader context that lacks coherent and enforceable policies to reduce exposure to police contact. Children also report on the carceral nature of residential care arrangements that curtail their autonomy through constant surveillance (Day et al., 2023a; Edwards et al., 2023). However, the process of criminalisation is multifaceted and draws on diverse sources of knowledge (Foucault, 2008; Haggerty & Ericson, 2000) at the nexus of child protection, OOHC and policing systems. Understanding how specific policies and practices mutually embed criminalisation within these systems is an important but under-theorised area of research. This study aims to address this gap by proposing a conceptual model that makes sense of how the criminalisation of trauma emerges from surveillance in both policing and residential care systems.

Methodology

Participants

Thirty-one judicial officers, legal professionals, youth justice professionals and independent children's advocates took part in either individual or group-based interviews. Fourteen interviews were undertaken in England and Wales, while 17 were conducted in NSW and Victoria. Table 1 provides a breakdown of the participants in each jurisdiction.

Table 1.

Participants by jurisdiction and role/profession.

Participant	Jurisdiction	Position
UKP02	England	Youth justice
UKP03	England	Legal professional
UKP04	England	Youth justice and academia
UKP05	England	Youth justice
UKP08	England	Legal professional
UKP09	England	Youth justice and children's services
UKP10	England	Legal professional
UPK11	England	Legal rights organisation
UKP29	England	Magistrate
UKP30	England	Magistrate
UKP31	England	Magistrate
UKP01	Wales	Youth justice
UKP06	Wales	Legal professional
UKP07	Wales	Legal professional
VICP12	Victoria	Senior legal professional (youth crime)
VICP13	Victoria	Senior legal professional (youth crime)
VICP14	Victoria	Legal advocate (youth crime)
VICP15	Victoria	Senior legal professional (youth crime)
VICP16	Victoria	Legal professional (youth crime)
VICP17	Victoria	Magistrate
VICP19	Victoria	Independent children's advocate
VICP22	Victoria	Judge
VICP25	Victoria	Senior legal professional (child protection)
VICP26	Victoria	Senior legal professional (child protection)
VICP27	Victoria	Senior legal professional (child protection)
VICP28	Victoria	Senior legal professional (child protection)
NSWP18	NSW	Magistrate
NSWP20	NSW	Judge
NSWP21	NSW	Judge
NSWP23	NSW	Magistrate
NSWP24	NSW	Senior legal professional (youth crime)

Data collection

Using convenience sampling,⁶ a member of the research team individually approached each participant. Organisations and/or individuals with extensive experience in the family and the criminal divisions of the Children's Court and those supporting and/or advocating for dual system-impacted children were originally approached based on the authors’ pre-existing networks. Additional agencies were then approached based on recommendations from participants who had been interviewed. In NSW and Victoria, permission to interview judicial decision-makers was sought directly from the President of the Children's Courts in each state. In England and Wales, permission was sought from the judicial office. Eligibility criteria were limited to whether participants had experience working with dual system-impacted children. All participants were provided with an explanatory statement and consent form prior to each interview.

The larger study from which these data were derived explored how multiple stakeholders within the criminal legal system understand the impacts of trauma on the sentencing of dual system-impacted children. Semi-structured interviews explored participants’ views on how the criminal legal system addresses the trauma-related needs of specific cohorts of children in OOHC, including First Nations children, children from culturally diverse backgrounds and children with disabilities, their experiences of sentencing, representing or working with dual system-impacted children, and the impact of regional and local contexts on the relationship between OOHC and juvenile justice. Interviews were structured around the same questions, but each participant was encouraged to raise additional issues pertinent to their experiences. Interviews were undertaken virtually and in-person between March and December 2023, ranged from 23 to 78 min in length, were recorded with participant consent, transcribed verbatim and de-identified prior to analysis. The project received ethics approval from the institutional review boards at Monash University and the University of Northampton.

Data analysis

Analysis was guided by Braun and Clarke's (2022) reflexive thematic analysis and grounded in critical criminological and social work perspectives. Transcribed interviews were uploaded to QSR NVivo Version 14 which assisted with employing a mixed deductive-inductive analytical approach. The first round of deductive coding was guided by a data extraction template initially developed by the first author that included seven relevant areas based on existing literature, and the issues the research team identified during data collection. These areas were discussed at length during monthly research team meetings throughout the life of the project. The original data extraction template was pilot-tested by the first author using a random sample of seven interviews using a random number generator for each data set. Once the seven randomly generated interviews had been coded, the first and second authors met to discuss each code and their corresponding definitions. Changes were made as needed, then the second author coded the same seven interviews to ensure consistency with any additional codes developed via consensus. All authors reviewed the data extraction template and preliminary coding. Three members of the research team were then each randomly allocated five interviews (n = 15) to code and met regularly throughout this stage to ensure consistency. The remaining interviews (n = 13) were randomly allocated to members of the research team for coding, with regular team meetings to discuss emergent themes.

Analysis proceeded over multiple steps, involving both inductive and deductive coding (refer to Paterson-Young et al., 2024 for a more detailed description of the methodology). The combination of deductive and inductive coding resulted in the identification of several core themes that highlight the way children in care are routinely and systematically criminalised. These are: the criminalisation of trauma as a function of reinforcing surveillance processes (surveillance of children in residential care and policing practices) which operate in the absence of trauma-informed and therapeutic systemic responses. This broader ecology frames the development of protocols to reduce the criminalisation of children in residential care. We highlight the way these processes interact via the criminalisation of trauma through the conflation of risk and victimisation when children are subjected to sexual exploitation and the way children are criminalised when they are missing from care.

Findings

The process of criminalisation is embedded within a broader ecology of policies and practices within the child protection, OOHC and policing sectors that are viewed as lacking in therapeutic models. This results in a perception that residential care providers and police have “… very little understanding of the behavioural presentation of young people who have significant trauma in their lives, who people in positions of authority have failed repeatedly” (UKP09). In the absence of therapeutic systems and responses, the criminalisation of trauma is viewed as almost inevitable.

… It's very clearly related to the distress of young people in care. For example, I had a case of a child (who) had hoped that he would spend time with his grandmother at Christmas, and that wasn't able to happen, and it was a huge disappointment … and resulted in him breaking some Christmas decorations at the (residential care) unit and being charged with criminal damage and remanded in custody. (VICP12)

The introduction of protocols to reduce the criminalisation of children in residential care needs to be understood within this broader non-therapeutic ecology. These protocols require active partnerships between police, residential care providers and child protection departments, yet participants noted that “we’re often saying to police or to the department⁷ have you heard about the framework? And it's the first time they’ve ever heard about it” (VICP26).

The apparent lack of knowledge or commitment to the protocols by police and the child protection system was reflected in the absence of “policies for discretion in laying charges for incidents that happen in residential care units” (VICP14), the need for cross-sector “… training and upskilling” (VICP19), and the negative impacts of a residential care workforce that is perceived to be “… somebody who is on minimum wage, having just to monitor a property … These people are the ones that are reporting the incidents and are pushing for prosecution” (UKP08). Participants reflected that existing protocols are “probably not doing enough yet in terms of persuading police. I mean, it's difficult [because] once the police have been called, they feel compelled to take action” (VICP14). The challenges associated with implementing joint protocols was further reflected in the way “evidence” of good practice was “… limited to individual children, rather than [applying] across the board” (VICP17), or involved decisions made by specific residential care teams within local government areas who were supported to “… only ever call the police if it was an absolute last, last resort” (UKP11).

Attempts to minimise the criminalisation of children in care have so far focussed primarily on limiting criminal charges in cases involving property damage and altercations that occur within residential care homes (McFarlane, 2018). Participants highlighted that these attempts have not been well integrated into residential care or police practice in part because they fail to account for the underlying factors that lead to a carceral response to these manifestations of childhood trauma.

Our data revealed the criminalisation of trauma occurred via three interrelated mechanisms: policies that emphasise risk management in the provision of care, the surveillance of bodies and behaviours, and the over-reliance on formal policing to respond to incidents in residential care settings. We use the examples of children missing from care and the increased risk of exploitation for these children to highlight how the process of criminalising trauma operates through this interagency assemblage.

Policies to mitigate risk

A common theme across all interviews was the view that risk caused by children in care is managed through criminalisation. For example, “… a lot of the behaviour that [children are] engaging in is criminalised, as opposed to residential care causing the criminalisation of some young people” (VICP14). Examples of this included children being “… charged with burglary for going into a room of the house that's off limits” (VICP14) and being “loaded up with offences inappropriately … [for smashing] a few Christmas decorations and swearing and carrying on for a few minutes …” (VICP12). This emphasis is consistent across all jurisdictions examined in this study.

There are many issues experienced by young people … the most common ones, from my experience, are that young people in care often come with a list of previous convictions resulting from issues experienced in care placements … all minor things that would not have been reported if they had been at home with their parents. (UKP07)

Risk management in residential care also reflects apparently conflicting priorities of supporting children with complex needs while ensuring the psychosocial, emotional, and physical safety of staff.

It's a pretty complicated and complex situation that we’re asking workers to try to manage, and the fact that they’re not well-supported … impacts them in terms of occupational violence. But it impacts children in terms of the involvement of police and criminalisation. (VICP19)

Another inherent tension within these systems is that service providers carry all the risk and responsibility for ensuring children's safety, without the statutory authority to effectively manage children's behaviour. As one participant noted “… in residential care we don’t have any levers to motivate good behaviour” (NSWP21). The need to mitigate risks in the absence of the necessary statutory tools and supports means that in many situations “… service providers would have felt that [calling the police is] what they had to do” (VICP19). In this context, risk mitigation within residential care settings relies on a ubiquitous form of surveillance by both residential care staff and police that directly contributes to the criminalisation of children's trauma.

Surveillance of children in residential care

Participants pointed to the way that “… residential [care] homes are not creating a home environment … when you’ve got multiple staff coming in and out, watching everything [the children] do” (UKP09). This level of surveillance follows directly from the perceived need to mitigate risks posed by and to young people in OOHC, while creating an environment where being constantly monitored becomes a normative part of being “cared for”.

But if you imagine you’ve got a young person who's brought up in the care system … Every little bit of behaviour is policed; there are disciplinary policies and behaviour policies in place that are different between different homes, delivered inconsistently by staff. (UKP09)

For some participants, the surveillance of children in residential care was considered an explicit example of the way children's trauma becomes criminalised.

They don’t have long-term relationships with their carers. And I think one of the main things is that it's such a disruptive attachment scenario because the people who are supposed to be caring for them can also be policing them, prosecuting them, and calling law enforcement on them. (VICP26)

Participants also noted the expansion of “dataveillance” assemblages (Ferguson, 2017; Lupton & Williamson, 2017) at the intersections of child protection, residential care, and policing. As one participant noted, these assemblages rely on the collection of data about every aspect of a child's life in residential care, because “everything is recorded about a young person” (UKP09). The type and quantity of data has direct implications for the process of care-criminalisation.

A brief will say that (the child has) absconded 226 times from their unit. But if they’d been in family care and they’d run off every day, the police don’t have that data. (VICP26)

While data collected by residential care providers may not be specifically intended to criminalise, it exists within a broader context of risk mitigation that has criminal consequences when police are called into a residential care setting. This results in information about children in care being used by police for prosecution, because it is considered evidence: “police keep horrible records of everything a young person has done from the age of 11 up until they’ve left the (child protection) system” (VICP14). These impacts of physical surveillance and dataveillance on the criminalisation of children are magnified by the entrenched nature of the residential care system's reliance on police to respond to incidents where safety within the OOHC facility appears to be compromised, and the perceived lack of trauma-aware responses when children are dysregulated.

We don’t see a trauma-informed engagement from police when they’re approaching (resi)⁸ kids. We’ll advocate for VicPol (Victoria Police) to have flags in their LEAP⁹ system which directs them to approach the young person in a trauma-informed way, or where possible to have a female (police officer) approach the young person …. But they’re much more focussed on risk. Often the response will be, “no we’re actually going to have a higher risk of an assault from the young person (because) that's what the LEAP flag says.” So, you’re just sort of setting the situation up to be one of conflict rather than de-escalation of the issues. (VICP12)

These data show that the criminalisation of trauma occurs due to multiple intersecting processes within systems that are not designed to be therapeutic. Children in residential care are therefore subjected to various policies and practices implemented by care staff and police that transform vulnerability and victimisation into risks to be monitored and controlled. Once police are called to an incident, the available responses are limited by virtue of their function as law enforcers.

Criminalising trauma: Children who are missing or absent from placement

In Victoria, children missing from care can be “apprehended” under a safe custody warrant that is sought by the state as the child's legal guardian, which is issued by the Children's Court and enforced by police. As the following quote indicates, the mechanisms relied upon by child protection and the courts to ensure children's safety are inherently criminalising.

There's a young woman who has had a lot of time absent or missing from resi, and a lot of experience of sexual violence when she's been absent or missing from resi. Because of her experience of sexual abuse and assault, whenever she's apprehended by multiple police officers, predominantly men, her reaction is pretty violent because she's so incredibly traumatised. And seeing then what would happen for her in terms of charges being laid, a whole raft of charges, and then the pathway into youth justice. (VICP19)

The criminalising processes associated with “apprehending” children missing from their residential placements are similar in England and Wales.

A big issue for me is the whole business of the police being called for missing incidents, which can be as simple as the child being 15 min late … the police are there waiting for them … But we don't do that for our kids. We don't phone the police when they are an hour late, the police would laugh at us. (UKP02)

The blurring of “risk” and “safety” was a key concern for participants, who emphasised that relying on carceral systems to limit harm to children in care undermines the very principles of therapeutic care service providers may be trying to implement. The similarities of the findings in different jurisdictions examined in this research are striking.

There was one girl in the home that I was working with and she hadn’t come home. We knew where she was, she was at her mum's and we knew that she was safe. But because of her risk assessment plan and policy, after 15 min of not hearing from her I had to call the police and then the police have to go out and look for her. She's had the police involved, it's embarrassing for her; it's going to ruin the relationship between her and us because that trust, to her, it's going to seem that it's not there. (UKP11)

And the police have this certain view of her. They don’t take into account the protocol (to reduce criminalisation), there's nothing put in place to manage her trauma and how that manifests itself. And she keeps getting charged because she assaults police when they come to (apprehend her on safe custody warrants). (VICP26)

As the next section illustrates, similar processes were identified when children are criminalised while being victims of criminal and sexual exploitation.

Conflating risk and victimisation

Children in residential care are known to be particularly vulnerable to criminal and sexual exploitation (Gatwiri et al., 2020; Shaw & Greenhow, 2020) where notions of risk, vulnerability and protection appear most pronounced. Interview participants noted these factors remain significant risks across these two systems:

… the whole issue of sexual and criminal exploitation is just a horrendous one for children in the care system. I’ve been aware of care homes where pimps and dealers have waited outside and that's still happening, that hasn’t changed. (UKP02)

A key concern for participants was that “from experience with these children, they are just criminalised all the time. We’re not looking at them as children, as victims” (UKP11). Many participants noted the conflation of criminality and victimisation was most apparent when children were recruited by others to undertake criminal activities. In these situations, there is often a failure to recognise that “if a child's been exploited they are a victim. If they have been caught and they have drugs on them, they are not willingly carrying those drugs, they have been exploited into doing that” (UKP11).

The vulnerability of children in residential care to such exploitation and related forms of victimisation was linked to a perceived lack of safety within residential care settings.

… there's this dynamic of children leaving resi because it doesn't feel safe, because it doesn't feel like home, because they really have no connection there. Some of them are leaving because they have no sense of agency or control, so at least if they're going to hang out with older men and engage in what we call sexual exploitation, they call swapping sex for drugs or money, at least they're in control. (VICP19)

The criminalising process, therefore, occurs not just through police responses to victims of exploitation as if they are perpetrators, but also through the ways that the child protection and OOHC systems fail to respond to these challenges therapeutically to promote a child's sense of safety.

Even where you’ve got kids who are subjected to sexual exploitation, and at really significant risk, they’re often just being placed back at the mainstream resi even though everybody working with them realises that the young person won't stay there. They’re taken back on a safe custody warrant, and they almost immediately abscond. You know, it's just a disaster really. (VICP12)

Discussion

Our data reveal that the process of criminalisation stems from a profound absence of therapeutic responses to trauma within and across residential care and policing systems. This contributes to an over-emphasis on risk that is managed through surveillance embedded into policing and residential care structures. While the care-criminalisation phenomenon is well-established, this study extends existing research (Baidawi & Ball, 2023b; Gerard et al., 2023; McFarlane, 2018; Paterson-Young et al., 2024; Shaw & Greenhow, 2021) by positing a conceptual model on the criminalisation of trauma as part of a process that draws on established policies and practices within both the residential care and policing sectors. This is because the surveillance of children in residential care gives rise to children's behaviour deteriorating and their becoming objectified as “risky subjects” to justify further surveillance through the criminal legal system. These processes exist within established control systems that rely on surveillant assemblages imbued by carceral and controlling logics (Deleuze, 1992). Despite being framed around the notion of care, the combined effects of these processes overlap to often exacerbate children's trauma (Shaw, 2017). The conflicting priorities of policing and care, combined with a lack of trauma awareness and the absence of therapeutically informed systems, results in children in residential care being criminalised by virtue of their status as looked after children (Morgan, 2022; Shaw & Greenhow, 2021). This is further exacerbated by a perceived lack of communication across sectors that results in systemically traumatic responses to the needs of dual system-impacted children (Kaip et al., 2023). Figure 1 provides a conceptual model of these processes.

Figure 1.

Conceptual model of systemic criminalisation of trauma at the intersection of residential care and policing.

Our model identifies that the criminalisation of trauma is grounded in three interdependent and self-reinforcing themes: policies within residential care that attempt to balance risk mitigation with the provision of care, heightened surveillance and an over-reliance on the police to control behaviour. These processes culminate in the criminalisation of trauma, which is exemplified by two common scenarios emerging from our data: the overt criminalisation of children who are missing from their placements, and the conflation of risk and victimisation in the context of child exploitation.

This model pinpoints a multi-faceted surveillant assemblage embedded within the otherwise distinct OOHC and policing structures. Within the structural and discursive frameworks that promote care criminalisation, attempts to develop protocols to reduce criminalisation confront the reality of different notions of risk that children are exposed to in OOHC. These differential notions move from the risk to the child that necessitates placement in OOHC to the risks caused by the child within the OOHC system. Protocols to reduce criminalisation prioritise the latter, because they are driven by the demands from OOHC staff when they feel inadequately supported to quell a potential risk without police assistance. In this context, police have limited recourse to non-criminal forms of containment or control, which by necessity limit the application of “trauma-informed” principles. Once this process commences, child protection, OOHC and policing responses instead promote notions of individual responsibility to behave, and all the attendant difficulties this presents for a child who is forcibly placed into OOHC.

The shift towards trauma-informed youth justice systems has gained increased attention given the mounting body of evidence of the prevalence of adverse and traumatic experiences among justice-involved children and adults (see, e.g., Chard, 2021; Glendinning et al., 2021; Liddle et al., 2016; Paterson-Young, 2021). There remain concerns, however, regarding the operationalisation of “trauma-informed practice”, including inconsistent definitions, and a misidentification of trauma-focussed programmes (i.e., those that target the sequelae of trauma, including post-traumatic stress disorder and mental health challenges), over a more holistic approach committed to limiting re-traumatisation through policies and practices that prioritise safety, trust, transparency, collaboration and empowerment (Day et al., 2023b; McLachlan, 2024). These processes are mirrored in child protection and OOHC systems which claim to be trauma-informed but lack a coherent definition or approach to the application of trauma-informed principles either at systemic or programmatic levels.

The intersecting structures of controlling risk through surveillance serve to expose young people in OOHC to care criminalisation. Our model indicates how these discursive, jurisdictional and policy frames become self-reinforcing and insulated from policy approaches that seek to reduce the reliance on criminalisation to deal with behaviour by children deemed to be risky in these environments. Indeed, McFarlane et al. (2019) in Australia, and Hunter et al. (2024) in England highlight the enormous challenges associated with translating policy intentions into actionable change, particularly when multiple systems with differing priorities are expected to work collaboratively to reduce care criminalisation. This is reinforced by our data, which indicates that currently there is no systematic approach to the implementation of these protocols, resulting in their application being left to the discretion of individual residential care staff and/or police officers. The potential benefits of these protocols are therefore not likely to be realised for all children in residential care, which further contributes to a cycle of criminalisation. This results in the care criminalisation process becoming triggered, with an ensuing spiral of further surveillance and control starting with routine reporting by residential care staff, and a formal record of a call out or a reportable offence made by police (see Molnar & Warren, 2020).

A key element of our model pertains to the way risk mitigation strategies often rely on carceral logics to identify, categorise, segregate and manage “risky bodies” (Evans, 2017; Shaw & Greenhow, 2021). The conflation of risk and victimisation among children in residential care is a defining characteristic of the criminalisation of trauma that feeds into entrenched perceptions of risk in residential care settings and, by extension, the children who reside in them (McCausland & Dowse, 2022). This finding accords with research by Shaw and Greenhow (2021, p. 482) which found that the over-reliance on police to manage children's behaviour in residential care is “primarily driven by defensive, risk-averse fears of being accused of failure and neglect at some future point, rather than having the confidence to assess and objectively respond to the presenting situation”. Similarly, our research builds on a large body of research identifying the role of surveillant assemblages (Haggerty & Ericson, 2000) as elements in the criminalisation process, even though there are evident tensions between police and residential care providers or strained relationships between these two sectors that might impact the criminal justice trajectories of these children (Gerard et al., 2019; Hunter et al., 2024; Kaip et al., 2023; McFarlane, 2018). In other words, any interrelationships between risk, safety and vulnerability may be spurred by more sweeping processes of “transmutation” (McCausland & Dowse, 2022), whereby children who are “at risk” and in need of protection transform into children who are “a risk”, and therefore a legitimate object of surveillance within OOHC and policing contexts. This occurs via language, policies and practices that reinforce pathologising narratives transforming children from “vulnerable” to “challenging” and “complex”. Over time, this transmutes into the language of criminality. As McCausland and Dowse (2022, p. 8) argue:

… there is a perverse irony in children and young people being in need of protection from families after being identified in police records as at risk, when police subsequently become the frontline of criminalising those young people once they are in care settings.

Limitations

This study includes some limitations. In the Australian context, none of the participants identified as Aboriginal or Torres Strait Islander. Therefore, our findings do not speak to the experiences of First Nations professionals, children or families impacted by these systems (cf. Cunneen, 2015/2016). Our findings also do not include the voices of dual system-impacted children or young people. This is a significant gap given the urgent need to identify how the criminalisation of trauma is experienced by children and young people and research identifying that residential care is experienced as unsafe and punitive by some children (Day et al., 2023a; Edwards et al., 2023). Finally, despite extensive efforts we were unable to have parity in interviews with judges and magistrates in NSW, Victoria, and England and Wales. Further, the views of judicial officers in this study reflect the specific social, legal, and historical factors that have contributed to the criminalisation of children in NSW and Victoria only and therefore may not be generalisable to other Australian states and territories. Despite these limitations, our findings align with existing research by reinforcing the pervasiveness of criminalising processes when children are in care.

Implications

Our findings have implications for policy, practice and future research at the intersection of OOHC and policing. At a policy level, our model highlights how the development of joint protocols to reduce the criminalisation of children in residential care is a necessary but insufficient response given the embedded nature of the care-criminalisation process. This could be mitigated, at least in part, through cross-sector trauma-informed training so police and residential care staff have a better understanding of the pervasive impacts of trauma on children's emotions and behaviour, and the relationship between childhood trauma and the risk of criminalisation. This would necessitate ongoing and collaborative training grounded in neuropsychology and other relevant trauma theories. Further, to promote greater congruence of responses, trust and collegiality, police and residential care staff should be jointly trained at a local level in evidence-based crisis intervention techniques that can help to de-escalate rather than punish trauma-based responses. This could include training in therapeutic crisis intervention or the Children and Residential Care Experiences model (see, e.g., Izzo et al., 2016; Nunno et al., 2003) to potentially mitigate against some of the challenges associated with the different foci of policing and residential care provision. Specifically, while it is important to recognise that the primary function of policing is not the provision of care, as first responders police play a significant role in limiting re-traumatisation or causing further harm to vulnerable children. Our model posits that the current emphasis on risk management through surveillance and control is not just anti-therapeutic but actively contributes to the criminalisation of trauma.

Our model also highlights the significant role that surveillance plays in the criminalisation of trauma, and consequently, the need for a more concerted approach by police and child protection to co-design individual plans for dual system-impacted children that explicitly acknowledge their experiences of trauma. This would necessitate a greater commitment at systemic and policy levels to prioritising viewing children in care as needing greater protective surveillance, rather than surveillance that produces more control. Such plans would prioritise the provision of therapeutic care and diversion away from the criminal legal system. Further, there is a need for more research into the role of surveillance within the child protection and residential care systems as a key determinant of the criminalisation of trauma.

At a systemic level, it is imperative to reimagine the function of child protection, OOHC and policing systems. Such a shift would also support the implementation of genuinely trauma-informed practises across the youth justice and OOHC sectors that can provide children with the safety required to begin healing from the impacts of trauma. This, however, will necessitate systemic reforms that shift away from child removal, control, and punishment to an emphasis on the provision of care to children and their families. This requires a complete shift in philosophy, where the emphasis on child protection and OOHC would move away from risks and back towards the welfare of children and their families. Without sweeping systemic changes to the ideological underpinnings of child protection, OOHC, policing and youth justice processes, the addition of trauma-informed practices will at best be minimally effective, and at worst, contribute to the further criminalisation of trauma.

Conclusion

Dual-system children are often subject to compounded vulnerabilities as they experience both the systemic shortcomings of the child protection and OOHC systems in conjunction with punitive approaches to juvenile justice. This dual exposure is exacerbated by siloed systems of support that treat children as “hot potatoes”, which perpetuates a cycle of trauma and instability. Addressing the unique experiences of these children requires moving beyond punitive approaches and toward co-designed solutions that recognise the impacts of this complex ecosystem for each child. Ultimately, effective support for dual-system youth hinges on a holistic ecosystem that prioritises support, prevention, and socio-emotional development over criminalisation to break the damaging cycle of surveillance and control for children and families involved in these systems.

Footnotes

ORCID iDs

Tatiana Corrales

Claire Paterson-Young

Ian Warren

Emma Ryan

Ethical Considerations

The project on which this article is based received the following ethics approvals: Monash University (Project ID: 37044), the University of Northampton and the Judicial Review Board (U.K.).

Informed Consent

All participants involved in this project provided written informed consent.

Author Contributions

Author 1: conceptualisation, methodology, formal analysis, investigation, and writing–original draft; Author 2: conceptualisation, methodology, formal analysis, investigation, writing–review and editing, and funding acquisition; Author 3: conceptualisation, methodology, validation, and writing–review and editing; Author 4: writing-review and editing; Author 5: conceptualisation, methodology, validation, and writing-review and editing.

Funding

This project was funded via the Support for Innovation and Research Ideas, Policy and Participation, Academic Support Grant from the University of Northampton.

Declaration of Conflicting Interests

The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Data Availability Statement

Data for this project cannot be made publicly available due to the potential that participants will be identified.

Notes

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Criminalising processes at the intersection of policing and residential care

Abstract

Keywords

Introduction

Background and theoretical contexts

Rationale

Methodology

Participants

Data collection

Data analysis

Findings

Policies to mitigate risk

Surveillance of children in residential care

Criminalising trauma: Children who are missing or absent from placement

Conflating risk and victimisation

Discussion

Limitations

Implications

Conclusion

Footnotes

ORCID iDs

Ethical Considerations

Informed Consent

Author Contributions

Funding

Declaration of Conflicting Interests

Data Availability Statement

Notes

References