Written evidence submitted by Drs Anne-Marie Day and Dr Kate Westwood (SFC0078)
Summary
1.1. ‘I know it sounds bad but I’m so glad that (the) youth offending (team) have actually come in our lives because I feel like I’m getting some support for my son and I’m actually getting somewhere’
1.2. The remark above was made by a parent who had spent years trying to persuade English education professionals to refer her son, Kaden, for an ADHD (attention deficit hyperactivity disorder) assessment. She described intense frustration at repeatedly feeling fobbed off and ignored when she pleaded for help. Upon becoming justice-involved, the youth justice case manager quickly picked up on Kaden’s traits and referred him to Child and Adolescent Mental Health Services (CAMHS) for an ADHD assessment, which was expedited as a result of his involvement in the criminal justice system.
1.3. This case reflects an unusual and highly frustrating situation where parents, carers and young people are often ‘relieved’ to become justice-involved because it finally means they will get the assessments and support they need for a range of neurodivergent conditions and special educational needs and disabilities.
1.4. Recent Government data identified that 80% of children in the youth justice system are identified as having special educational needs and disabilities[1] (SEND) (Department for Education, 2022). Most of these children will not have been identified as having SEND until they enter the justice system, often because their needs are missed within mainstream education. There have been significant reductions in the numbers of first-time entrants (FTEs) into the youth justice system which can partly be attributed to the increases in the use of measures to divert children from the YJS. However, a recent report by the Centre for Justice Innovation has highlighted that children with SEND are not benefitting from diversionary support to the same extent as children without identified SEND (Centre for Justice Innovation, 2024).
1.5. Focusing on neurodivergence[2], it is estimated that at least one in three people in the criminal justice system in England and Wales may be neurodivergent (Cruise et al, 2011), and that this rate is even higher for children with ADHD and speech and language difficulties (Kirby, 2021: 10). Equally, it is estimated that the rate of children in custody with a neurodivergent condition is higher than those serving community sentences. For example, 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). In another Canadian study it was estimated that youths with FASD were at least 19 times more likely to be incarcerated than those without FASD (Popova et al, 2011).
1.6. It is also difficult to ignore the over-representation of black and mixed ethnicity children in the youth justice system. While numbers of justice-involved children have decreased over the last ten years, during the same period, the proportion of black and mixed ethnicity children has more than doubled (Youth Justice Board, 2024). Strand and Lindorff (2018) found that black and mixed ethnicity children are also more likely to be identified as having SEND and receive an EHCP (Education, Care and Health Plan) from the Local Authority. Rates of school exclusion are also highest for black, mixed ethnicity, Gypsy/Roma and Traveller or Irish Heritage children (Department for Education, 2023).
1.7. The House of Commons Education Committee (2019) commented that attempts to reform the SEND system in 2014 had largely failed:
1.8. ‘Let down by failures of implementation, the 2014 reforms have resulted in confusion and at times unlawful practice, bureaucratic nightmares, buck-passing and a lack of accountability, strained resources and adversarial experiences, and ultimately dashed the hopes of many. There is too much of a tension between the child’s needs and the provision available’ (House of Commons Education Committee, 2019: 1).
1.9. The House of Commons Education Committee gave examples of poorly written EHCPs, ‘off-rolling’ (hidden exclusions of children with SEND), inconsistencies between local authorities, and children’s health needs being ignored (House of Commons Education Committee, 2019). Interestingly, children’s experiences in the justice system were not mentioned in the Committee’s Report, despite the new legal requirements for consistent support to be delivered for children in custody, as outlined above. The Committee’s recommendations subsequently centred on the need to increase resources across the education system to adequately support children with SEND (House of Commons Education Committee, 2019: 20).
1.10. More recently, the government’s flagship reform of the SEND system in England, under the “SEND and Alternative Provision Improvement Plan” (Department for Education, 2023a), makes only four references to youth justice, in relation to drawing on youth justice expertise in the creation of National Standards for Alternative Provision[3] and when discussing the links between school exclusion and the prevention of reoffending. None of the recommendations relate to children’s experiences in the mainstream education system of statutory SEND recognition and provision. The SEND and AP Roadmap (Department for Education, 2023b) makes no mention of Youth Justice.
2.1. Some of the challenges facing neurodivergent children within education include that they may have long periods of disengagement and/or non-attendance from school; and difficulties understanding the behavioural expectations within a classroom, including verbal directions and class rules (Hughes and Peirse-O’Byrne, 2016). The failure to understand such expectations can then be wrongly interpreted by teaching staff as ‘bad’, ‘disruptive’, or ‘naughty’ behaviour, rather than indications of a child struggling to cope and function in the school environment (Ibid; Rainer et al, 2023; Day, 2024). As children who are from racially minoritized backgrounds are more likely to be diagnosed with SEND (Strand and Lindorff, 2021), they may also be more likely to have Adverse Childhood Experiences (ACEs) (Bellis et al., 2014). The behavioural responses of children with ACEs are well documented as fight/flight/freeze (Feletti et al., 1999; van der Kolk, 2015), which can manifest in defensive, aggressive, or disengaged behaviours (ibid). These circumstances can be obscured when teachers are required to punish, rather than understand, these disruptive behaviours (Martin-Denham, 2020; Westwood, 2024). The recent move by many secondary mainstream schools of punitive approaches and micromanaging behaviours has only exacerbated these challenges and is indicated to have led to higher levels of SEND diagnosis of racially minoritized of young people (Strand and Lindorff, 2021).
2.2. Children in England and Wales with an identified SEND are at least 7 times more likely to be excluded from mainstream education than their peers (Gill et al, 2017). In 2018/19, children with SEND accounted for 44% of all permanent exclusions, and 82% of permanent exclusions in primary schools (Office of the Children’s Commissioner, 2021). Children with SEND support plans are twice as likely to be excluded from school as children with EHCPs, and at over 5 times the rate as children with no identified SEND (Ibid, 2021). When children are excluded from mainstream education, they are typically sent to a Pupil Referral Unit or another form of Alternative Provision. In 2018/19, 81% of children in AP had an identified SEND (Office of the Children’s Commissioner, 2021). However, despite this, there is no routine screening process in place for neurodivergent traits in excluded pupils (Kirby, 2021).
2.3. Although alarming, the above figures are likely to be the tip of the iceberg as they only contain data on ‘official’ exclusions. The practice of ‘off rolling’ or ‘hidden exclusions’ (removing pupils from the school register by placing them in alternative provision or home education) has significantly increased in recent years (House of Commons Education Committee, 2018: 3).
2.4. There is established evidence that school exclusion can accelerate a child towards the criminal justice system (Berridge et al, 2001; McAra and McVie, 2010; Ministry of Justice, 2012; Sanders, Liebenberg and Munford, 2020; Timpson, 2019). Indeed, there is emerging evidence that the ‘school exclusion to prison pipeline’ disproportionately applies to children with a neurodisability (Kent et al, 2023).
2.5. Given the increased risk of being excluded and/ or off-rolled from school, it is of little surprise that there is emerging evidence of children with SEND and neurodivergent children being disproportionately at risk of Criminal Exploitation, as well as a failure to provide a co-ordinated approach to meet their needs. A recent study by Manchester Metropolitan University and partners (Franklin at al, 2024) found that there is a lack of attention to the specific needs of children with SEND in the Safeguarding context, data collection is patchy, and there are many missed opportunities for early detection and intervention for children with SEND at risk of exploitation. The Report noted that the failures of the education system to meet children’s needs was one of the biggest contributory factors of exploitation amongst children with SEND.
2.6. There is evidence of labelling, isolation and exclusion (Day, 2024) within education that accelerates children to the justice system and may offer some insight into why 80% of children in the youth justice system have some form of SEND. The education system’s primary focus on achieving excellent examination results (e.g. Timpson, 2019) and the management of challenging behaviours means that children’s underlying needs are often missed.
3.1. There is established evidence that school exclusion can accelerate a child towards the criminal justice system (Berridge et al, 2001; McAra and McVie, 2010; Ministry of Justice, 2012; Sanders, Liebenberg and Munford, 2020; Timpson, 2019). Indeed, there is emerging evidence that the ‘school exclusion to prison pipeline’ disproportionately applies to children with a neurodisability (Kent et al, 2023). However, despite this acceptance, it is acknowledged that understanding causality of offending as a linear relationship between exclusion and criminality oversimplifies what is often a complex interplay between a range of factors (Arnez and Condry, 2021; Berridge et al, 2001; Case and Hazel, 2020). There is no doubt that the complex interplay of factors in the ‘school exclusion to prison pipeline’ includes understanding why there are disproportionately high numbers of neurodivergent children and children with SEND excluded from mainstream education.
3.2. It is important to gain an understanding of how some cognitive and emotional traits associated with particular neurodivergent disorders can directly influence a likelihood of certain challenging behaviours, and thus increase the risk of both school exclusion and criminalisation (Hughes, 2015). There are also a range of social and environmental factors that can trigger certain behaviours and increase the likelihood of criminalisation. These include vulnerability to peer pressure, educational disengagement, and parenting practices and techniques (Hughes, 2015).
3.3. There are a range of recommendations that the Committee could consider for justice involved children with SEND:
3.3.1. Offer the same protection against school exclusion for children on SEND Support as EHCPs.
3.3.2. Listen to parents and carers! Take them seriously from the outset and act!
3.3.3. Trauma-informed approaches in mainstream schools to understand where disruptive behaviour arises from (and to mitigate against the mis-appropriated diagnosis of SEND)
3.3.4. A presumption against school exclusion for all children with diagnosed/ suspected SEND.
3.3.5. Screening for SEND/ neurodivergence offered in school as soon as a parent/ professional/ the child or young person themselves suggests that they may have SEND.
3.3.6. Dedicated, full-time (and fully trained!) SENCOs in primary schools who are also trained in screening children for SEND
3.3.7. Significant national investment in the training and recruitment of Educational Psychologists, Speech and Language Therapists and CAMHS practitioners.
3.3.8. Consideration of how to expand the Right to Choose Service for assessments of a wider range of SEND and neurodivergent conditions, and offering referral pathways directly to this service from education providers.
3.3.9. Review the use of punitive, harsh and often discriminatory rules within mainstream schools that can disproportionately impact on children with SEND and accelerate them through a school’s disciplinary system
3.3.10. Related to the above, remove the academic performance pressures on schools. This would reduce the need for 0 tolerance behaviour policies, enable more time for teachers to build relationships with students and explore potential reasons behind disruptive behaviour.
3.3.11. Establishment of a Multi-Agency Local Authority Level Independent Board to review all Permanent Exclusions (including in academies) with the powers to overturn decisions and put together action plans to meet the children’s needs. Representation from CAMHS, Social Care, the Youth Justice Service, School Exclusion Service and the School should be mandated.
3.3.12. Training for all front-line teaching staff in how to identify potential SEND and neurodivergence, and where to go for more information and support.
3.3.13. A Government definition of Child Criminal Exploitation and review of referral mechanisms and services to safeguard children at risk of exploitation.
November 2024
[1] In England the term SEND (special educational needs and disabilities) and in Wales the term ALD (Additional Learning Needs and Disabilities) are used. A UK legal definition of special educational needs and disability was given in The Children and Families Act 2014 as ‘A child or young person has SEND if they have a learning difficulty or disability which calls for special educational provision to be made for him or her’ (Council for Disabled Children, 2016).
[2] Neurodivergence covers conditions including attention deficit hyperactivity disorder (ADHD), autism spectrum disorders (ASD), foetal alcohol spectrum disorder (FASD), developmental language disorders (DLD), Dyspraxia, Dyslexia, intellectual disability and communication disorders (Hughes, 2015). However, given that many children will not have been assessed and diagnosed in the education and youth justice systems or they may have levels of impairment that do not meet the criteria for a diagnosis (Ibid), a word of caution is noted about over-reliance on clinical diagnoses as a basis for a definition.
[3] Alternative provision is where children are sent after being permanently excluded from mainstream education, and are often placed in a Pupil Referral Unit (PRU).