Abstract
It is widely accepted that legal responses to criminal offending by children should be based on the principle of ‘minimal intervention and maximum diversion’. Criminal law processing can increase a child’s chances of ongoing contact with the criminal law system; however, there is limited research about what effect a court appearance has on a young person’s trajectory. In Australia, formal criminal courts retain decision-making authority in youth justice matters, rather than restorative panels or tribunals, although some children’s courts have adopted problem-solving programmes on an ad hoc basis. We interviewed 46 youth justice practitioners in Queensland, Australia, to gather their perspectives on the use of problem-solving approaches in children’s criminal courts. Somewhat surprisingly, most participants did not consider problem-solving courts to be appropriate for children. Instead, they emphasised the need to deliver services to children outside the court system, recommending increased interagency collaboration, and liaison and diversion services.
Introduction
International research has shown that, in most cases, the best response to children’s criminal offending is ‘minimal intervention and maximum diversion’ (McAra and McVie, 2007: 219; see also Petrosino et al., 2010; UN Committee on the Rights of the Child, 2019). While most children will ‘age out’ of offending when they become adults (Moffitt, 1993), the risk of serious and persistent offending increases if children are exposed to formal criminal law processes (McAra and McVie, 2010). Despite the large body of research demonstrating that youth justice interventions can themselves be ‘crime-causing’, calls for tougher penalties, tightening of bail laws and ‘locking up’ of children still follow isolated incidents of youth crime. When such calls are expressed in the media, they can provide a catalyst for ‘reforms’ to youth justice laws that contradict international best practice and breach domestic and international human rights obligations (Goldson et al., 2021; McAra and McVie, 2007: 340; Richards and Lee, 2013: 856).
It has been said that the most efficient way of ensuring a ‘minimal intervention and maximum diversion’ approach to youth justice is to increase the age of criminal responsibility (Goldson, 2013; Whyte, 2003). However, in Australia, the age of criminal responsibility is still 10 years of age in most jurisdictions, and there has been some reluctance on the part of governments to commit to change. The Australian Capital Territory has recently legislated to increase the age of criminal responsibility to 14 years, and two other states have committed to increasing the age of criminal responsibility to 14 years at some point in the future (Victoria and Tasmania), but the remaining states seem reluctant to follow suit (Crofts, 2023). Some have instead implemented punitive amendments to their youth justice laws in recent years, reversing the presumption in favour of bail, increasing maximum prison terms, and reducing judicial discretion in sentencing. Unsurprisingly, these changes have resulted in higher numbers of children in custody, particularly those on custodial remand (e.g. Children’s Court of Queensland, 2022: 7).
Judicial officers in Australia report feeling frustrated about the limited therapeutic options available to them when sentencing children and tend to be enthusiastic about the introduction of problem-solving children’s courts (Borowski, 2013; Richards et al., 2017; Sheehan, 2013). However, such courts can have unintended consequences for child defendants. By prolonging children’s engagement with the youth justice system, and increasing the amount of surveillance they are subject to, children are at higher risk of breaches which may attract additional sanctions (Loader et al., 2010). Unfortunately, problem-solving children’s courts are seldom evaluated (Madell et al., 2013), so it is unclear whether they have an entrenching or diversionary effect.
The aim of this study was to obtain the perspectives of frontline workers in youth justice in Queensland, Australia, on whether problem-solving approaches ‘work’ in children’s courts. It will be seen that, while they did not generally support the use of problem-solving courts for children, participants did support the increased use of restorative approaches, and court liaison and diversion services, to address the needs of criminalised children. Importantly, they agreed that the best outcomes are achieved when children receive therapeutic services in the community, rather than at court.
Youth Justice and Youth Crime in Australia
In Australia, youth justice is a state/territory legislative responsibility, so there are eight different youth justice systems in operation. These systems are generally similar in their underlying principles and approaches; for example, legislation in all states and territories encourages police to divert children using cautions and restorative justice measures, while retaining incarceration as an option for children on remand and under sentence. Youth justice conferencing is available as a diversionary option at all stages of the process: pre-charge (by police, instead of arrest and court appearance); post-charge (by police and courts, to avoid a court-imposed penalty); and as a sentencing option (Goldson et al., 2021: 30). Yet, the number of charges resolved restoratively remains low compared with the number of court appearances: for example, in Queensland in 2022/2023, there were 6950 finalised court appearances of child defendants but only 2164 referrals to restorative justice conferencing (Children’s Court of Queensland, 2022).
Most state and territory Youth Justice Acts state that youth detention should be used as a last resort, and for the shortest time possible. 1 Yet, the youth detention rate remains high in Australia. On an average night, around 800 children are in detention in Australia (Australian Institute of Health and Welfare (AIHW, 2023b). By way of comparison, only 450 children are in youth detention on an average night in the United Kingdom (UK), despite the fact that it has almost three times the youth population (Youth Justice Board for England and Wales, 2023). Furthermore, a very high proportion of Australian children in detention are on remand: 77 per cent (AIHW, 2023b) compared with 44 per cent in the UK (Youth Justice Board for England and Wales, 2023). Alternatives to custodial remand do exist in Australia. In Queensland, conditional bail programmes are available as a form of unsentenced supervision, and in other states and territories, home detention bail is also available. Reliance on these alternatives is growing; indeed the number of conditional bail orders increased by 26 per cent in Queensland between 2021/2022 and 2022/2023 (Children’s Court of Queensland, 2022: 42). However, breach rates are high: the most recent information available suggests that less than two-thirds of children who commence conditional bail programmes in Queensland complete them successfully (Queensland Department of Children, Youth Justice and Multicultural Affairs (CYJMA), 2020).
While it is true that recidivism is not the only measure of success in youth justice (Richards and Lee, 2013: 852), it is worth noting that children’s rates of return are very high in Australia: 85 per cent of children who spend time in detention, and 57 per cent of those who have been subject to community-based orders, will return to the youth justice system within 12 months (AIHW, 2023a).
Recent years have seen an increase in community concern regarding ‘youth crime waves’ only some of which is supported by statistical evidence. While the overall number of charges, and the number of children charged with offences, has not increased significantly, certain crimes have become more common (Queensland Government Statistician’s Office (QGSO), 2023). Most crime committed by Australian children is property-related: the most common charges are theft and shoplifting, which in Queensland, account for over 30 per cent of all children’s charges (Children’s Court of Queensland, 2022: 29). Rates of violent crime and sexual assault remain relatively low, accounting for around 12 per cent of charges against young people in Queensland (Baidawi et al., 2024; Children’s Court of Queensland, 2022: 29). However, the rate of motor vehicle theft and unlawful entry charges among children have increased substantially in recent years (QSGO, 2023: 69), and this has resulted in expressions of public panic, and associated media and policy attention.
Criminalised children in Australia
What tends to be forgotten when youth crime is politicised is the high level of vulnerability observed among criminalised children. It is true in Australia, as elsewhere, that most criminalised children have experienced several adverse life events (Fox et al., 2015; Moffitt, 1993). Up to 75 per cent of children in the youth justice system have been involved with child safety services, more than half have experienced or witnessed family violence and around one-third have experienced homelessness (Baidawi and Ball, 2023; CYJMA, 2023). First Nations children are 22 times more likely to be under youth justice supervision; they comprise around 5 per cent of the youth population but make up around 70 per cent of the youth detention population (CYJMA, 2023).
High rates of psychiatric and cognitive impairment are observed among children under youth justice supervision in Australia (Goldson et al., 2021). Many have speech and language disorders, and most are disengaged from education and training (CYJMA, 2023; Kippin et al., 2018). The Queensland youth justice department has reported that 28 per cent of children in custody have attention deficit hyperactivity disorder, 18 per cent have a cognitive or intellectual impairment, 5 per cent have autism spectrum disorder and 4 per cent have a psychotic disorder (CYJMA, 2020), but these are likely to be underestimates as children can remain undiagnosed.
A small number of children are responsible for a large proportion of charges heard by children’s courts (Richards and Lee, 2013: 849). In Queensland, for example, 10 per cent of children who appear before the criminal courts are responsible for around half of all charges (Atkinson, 2022: 10). Recent law and policy reform has focused on this particular group, which is appropriate because there are likely to be some overlaps between this group and the small proportion of children who go on to become ‘life-course-persistent offenders’ (Moffitt, 1993). Both groups tend to have experienced multiple adverse life events including childhood trauma, child protection involvement and homelessness (Moffitt, 1993: 688; Fox et al., 2015). Some scholars have argued that a minimal intervention and maximum diversion approach is not appropriate for these high-risk cohorts. Wilson and Hoge’s (2013) meta-analysis on youth justice diversion demonstrated that while pre-charge diversion without programme requirements yielded better outcomes for low-risk children, diversion to intervention programmes was more effective in reducing recidivism among medium to high-risk young people (pp. 507, 509). Blagg et al. (2019) similarly concluded that ‘minimal intervention’ was not effective with First Nations children with cognitive impairments, and instead recommended diversion into Indigenous owned and managed services that could provide culturally safe care (Blagg et al., 2019; see also Cunneen, 2020).
In Queensland, a ‘serious repeat offender’ index has been developed to identify these high-risk children (Atkinson, 2022: 27), and courts now have the power to declare that a child is a ‘serious repeat offender’ based on their criminal history (see Youth Justice Act 1992 (Qld) s 150A). These children are supposedly targeted for additional interventions; however, they are also subject to a different sentencing regime, where the judicial officer must have ‘primary regard’ to community safety rather than the child’s rehabilitation. The law and policy goals seem contradictory.
The Role of Children’s Courts Within the Youth Justice System
In Australia, children’s courts are ‘microcosms’ of the adult court system (Davis, 2020). Most children’s criminal matters are heard by magistrates; however, serious offences may be heard by District Court or Supreme Court judges. Children’s courts are specialist lists in the sense that all children’s matters are heard on the same docket, sometimes by a specialist magistrate; however, proceedings are generally indistinguishable from the adult courts. Children’s courts remain adversarial, judicial officers tend to engage in ‘passive adjudication’ and there is often minimal participation by children and parents in proceedings (Borowski, 2013: 167; Centre for Innovative Justice, 2020; Saunders et al., 2019). Children report that they do not understand the process or terminology, and believe that the realities of their lives are not understood by the court (Saunders et al., 2019). The children’s court system is especially alienating for Indigenous children, who experience barriers of culture, language and geography (Cunneen, 2020).
There is limited research on the extent to which court appearances themselves are criminogenic (Weatherburn et al., 2012: 795; Richards and Lee, 2013: 861). Higher rates of recidivism have been found among children who appear before a court compared with children who are diverted to restorative justice conferencing (see Weatherburn et al., 2012), but much may depend on the type of court they appear before.
Problem-solving (or ‘problem-oriented’) courts are often touted as more appropriate and effective than traditional courts when dealing with vulnerable cohorts of defendants (King, 2007). Problem-solving courts operate on an adjournment-model, that is, the defendant’s matter is adjourned to give them a chance to engage in programmes. A multidisciplinary team led by the judicial officer develops an intervention plan aimed at addressing the underlying causes of the defendant’s offending behaviour. The defendant’s progress towards agreed goals is monitored by the court through regular court appearances and, if the defendant successfully completes the programmes, they may escape further penalty (Berman and Feinblatt, 2001; Schaefer and Beriman, 2019).
A decade ago, Sheehan and Borowski (2013) undertook a national assessment of Australia’s children’s courts. They found that several jurisdictions were experimenting with ‘[p]roblem-oriented courts, including Indigenous courts, drug courts, mental health courts, community courts and family violence courts’ (Sheehan, 2013: 3; see also Centre for Innovative Justice, 2020). Several Indigenous youth courts now operate in Australia (Grigoris-Gore, 2021; Ipsos, 2019; Ooi and Rahman, 2022). The aim of these courts is to provide a culturally appropriate environment where a plan can be made for cultural and other interventions to be delivered to an individual child. There is a consistent magistrate who retains ultimate sentencing power; however, Indigenous Elders also attend the proceedings and sit alongside the magistrate to assist them in reaching decisions on bail, intervention programmes and sentencing.
Similar courts involving judicial case management have been developed for other high-risk groups of young people. For example, the NSW Youth Drug Treatment Court was introduced in three metropolitan locations in 2000 (Turner, 2011). In Queensland, the High-Risk Youth Court was established in the regional centre of Townsville in 2017 and is targeted at children identified as ‘high-risk repeat-offenders’ (Pieper et al., 2018). In Tasmania, the Youth Justice Court was established to facilitate better coordination between youth services and the court and to increase collaboration between relevant agencies (Daly, 2012). In Victoria and Queensland, ‘fast track’ remand courts have been created with the goal of reducing the length of time children spend on remand (McGorrery et al., 2020). Each of these courts draw on aspects of the problem-solving court model. Yet, few of these courts have been independently evaluated (although see Ooi and Rahman, 2022), and many have struggled to retain their funding (e.g. Queensland Youth Murri Court: Ipsos, 2019) or have closed down (e.g. NSW Youth Drug Treatment Court: Richards et al., 2017). As a result, it remains unclear whether problem-solving courts address, or entrench, the criminogenic effects of youth justice processes (see also Madell et al., 2013). Our study aimed to investigate whether youth justice practitioners supported the use of problem-solving approaches in an Australian context.
The Study
Our study was conducted in Queensland, the third most populous state of Australia. More children are in youth detention in Queensland than in any other state or territory, and Queensland has the highest proportion of detained children on remand (AIHW, 2023a; Children’s Court of Queensland, 2022). The rate of Indigenous children in the youth justice system is very high in Queensland: 50 per cent of all children who appear before a court, and around 70 per cent of children in detention, are Indigenous even though they comprise only 4 per cent of the youth population (Children’s Court of Queensland, 2022).
We received funding from the Queensland government to undertake a study on children’s courts to inform law and policy developments. The aim of the study was to identify ‘best practice’ in children’s courts, with a particular focus on problem-solving approaches.
We interviewed 46 youth justice professionals, most of whom worked for the Queensland government as judicial officers, youth justice officers, police officers and lawyers (n = 37). The remainder worked for non-government organisations as youth workers or lawyers (n = 9). A combination of purposive and snowball sampling methods was used (Palinkas et al., 2015). Certain individuals were purposefully recruited because they had extensive experience in or knowledge about a particular aspect of youth justice practice, and those individuals suggested others who might be recruited. Our intention was to interview individuals who worked directly with young people. Workers in strategic or policy roles were not invited to participate unless they also had recent experience in frontline positions. To ensure anonymity, no demographic data about participants was collected; however, we can report that nine of the participants were First Nations people (20%), 28 (61%) identified as female and 18 identified as male (39%).
All interviews were undertaken via video conferencing, which ensured that participants’ geographic location was not a barrier to their participation. Queensland is the most decentralised of all Australian states, so it was important to include participants from a range of cities and towns. Most participants (n = 32) were interviewed individually, and the remainder were interviewed in pairs at their request. The interviews were semi-structured and around 1 hour’s duration. We used a series of prompt questions which addressed topics including the use of problem-solving courts in youth justice, whether (and how) the courts should deliver services to young people and what their ‘ideal’ (child-friendly and culturally safe) children’s court would look like.
The audio recordings of the interviews were transcribed verbatim by research assistants, and we undertook a thematic analysis of the data generated. We conducted a ‘reflexive’ thematic analysis using Braun and Clarke’s (2022) methods. Codes were first discussed and agreed upon between the authors. The first author then undertook manual coding of the data. The predefined codes were ascribed to participant comments that were of analytical interest on the physical transcripts (Braun and Clarke, 2022: 56–57). NVIVO software was used to organise the data by code, and to identify code clusters. The authors then collaboratively generated themes based on code clusters, and the themes were reviewed at several stages during the write-up (Braun and Clarke, 2022: 35).
Findings
We generated three themes from participants’ comments on problem-solving approaches in children’s courts. They were (1) challenges for accused children navigating the existing children’s court system, (2) problem-solving courts are not appropriate for children and (3) problem-solving approaches that work well in a youth justice context.
Challenges for accused children navigating the existing children’s court system
Participants agreed that the criminalised children they worked with were extremely vulnerable and most had experienced several adverse life events. Participants said that accused children were invariably ‘known to’ mental health, drug and alcohol, health and disability agencies, and had been ‘assessed to death’. They felt that these children had been ‘badly serviced by agencies that have got statutory responsibilities to look after them’. One participant said: the community fails to see what happens to these young people and the trauma that they’ve gone through, and their lives, and their upbringing. And that to lock that young person up is not going to solve that problem. It keeps them off the street, but it doesn’t solve the issue of what’s going on for that young person.
Many participants said it was not uncommon for children to deliberately commit crimes so they could come into custody, to escape violence and poverty. One participant said: One of the most heartbreaking things in a courtroom is when the child says that they committed the offences to get into custody to be safe from their other environment which is their home. And that’s when we know that we have got a much bigger issue here.
Participants said accused children found it very difficult to navigate the court system. They said children’s courts are ‘quite formal’ and ‘typically a reflection or replication of what happens in the adult system’. Even the Youth (Indigenous) Murri Court was described as having been ‘just kind of adapted’ for use with children. Participants said that the built environment of the courts was ‘sterile’ and not designed with children in mind, unlike children’s hospitals or schools. Furthermore, participants said that accused children did not understand the language used by court personnel, particularly ‘big words’ like ‘comply’, ‘breach’, ‘refrain from’ and ‘curfew’. This meant children did not always understand their orders and could not meaningfully participate in court proceedings. Participants also said that children often become ‘really shy’ when questioned in court, which could be misinterpreted as disrespect or disinterest by judicial officers.
Problem-solving courts are not appropriate for children
We expected participants to express support for problem-solving children’s courts to address some of these concerns. However, most expressed the view that problem-solving courts did not ‘translate well’ into a youth justice context. They supported an approach that ‘address[ed] why are kids offending, what’s happening and . . . what’s going on in the family’. However, they felt problem-solving courts were too onerous for children, they did not support judicial case management for children, and some participants questioned the cultural safety of Indigenous youth courts.
Problem-solving courts as too onerous
Our participants felt that problem-solving courts were too onerous for children because they required multiple court appearances and programme engagement over an extended period. Participants noted that problem-solving courts are ‘really time consuming’, which created the risk of children ‘giving up’ because ‘they don’t want to come to court every second [week]’. Participants said that ‘if you put too many conditions on them’, children are more likely to breach their orders. They observed that children regularly failed to appear in court and missed appointments, often through no fault of their own. One participant explained: [A]dults have a better understanding of the timeframe and of what’s required of them, and can get themselves around, have their own transport, not reliant on other people. Whereas for kids, three months for stuff to be finalised can sort of be a long time. And everything that can happen in between, has.
Participants felt that children’s courts were ‘not equipped’ to take a ‘flexible approach’. They also observed that problem-solving courts were ‘harsher than normal courts’. One participant said of the Youth Murri Court: ‘the media perception, or the perception that is often portrayed is one of soft-on-crime. I think it’s hard’.
There was broad consensus that if a child must appear before a court, ‘you want to get them in, get them out’ – ‘the quicker and swifter the punishment for the young person, the more beneficial and the more they’re going to get out of it’. Participants noted that children have a ‘short attention span’ so if it takes months to finalise their matter, the outcome may be irrelevant to them because ‘they’ve just forgotten about it’. Most participants felt that children’s matters should be dealt with ‘on the day’ wherever possible, and that repeat court appearances should be avoided. They said that the aim of the children’s court should be to ‘get these kids sentenced as quickly as possible, to minimise the length of time that they’re on bail’. Overall, participants concluded that problem-solving courts were ‘not a good fit’ for children because these courts ‘need commitment, and you know, that goes against everything in the Youth Justice Act, quite frankly, because it does delay finalising matters’.
Judicial officers should not case manage children
Most participants were not supportive of judicial monitoring for children. They felt that court appearances should be avoided, and that judges should not act as ‘quasi case managers’ for accused children. One said: I think sometimes, and historically there has been, this idea that, ‘oh, we’ve got this great opportunity to do some work with someone’. Courts have often taken this view, this feel-good response . . . when in fact it pulls them into a system often irretrievably. . . [Many] come back because we have pulled them into the system prematurely.
Participants felt that therapeutic interventions ‘should be left to, without any disrespect, to those who work in that space all the time’. Participants preferred a system where young people were case managed by organisations in the community ‘because, at the end of the day, they’re going to be with us [youth justice] for a small window of time – [we need to be] planning for a bit more of that long-term’. One participant described the court system as: ‘very much an ambulance at the bottom of the cliff. And by the time we come to intervene, it’s far too late. A lot of the damage has already been done’.
Participants also observed that not every magistrate has the skills, knowledge and experience required to case manage children. Participants observed that, because Queensland is so geographically large and the population is so widely dispersed, children’s hearings were often presided over by the local magistrate rather than a specialist children’s magistrate. Several participants had encountered magistrates that were inflexible, not ‘super well-versed in youth justice’, or ‘don’t care’ about children. Others said that not all magistrates appreciate that ‘children are children, and they think differently and their brain’s wired differently’. Participants said that some magistrates have a tendency to ‘improvise’ and base their decisions on ‘a gut feeling’. Some participants said that when judicial officers undertake case management roles, they ‘find out far too much about the kids and it makes it difficult to be independent’. For this reason, participants advocated for a separation of judicial and ‘therapeutic’ functions.
Indigenous courts and cultural safety
Somewhat unexpectedly, several participants questioned the cultural safety of the Youth Murri Court. For some, this was a matter of principle, for example, one participant said: ‘I’m uncomfortable with Murri Courts for kids . . . I find them racist. You know, we just say, ‘Oh, you’re black, you’re black, talk to that person’’. Other participants said that not all Indigenous children were receptive to the involvement of Elders, particularly ‘very urban’ children, or children from a ‘different mob’.
Some participants felt the presence of Elders in court could be ‘tokenistic’ if they were not actively involved in proceedings. One participant said: ‘[u]nless you get a feisty [Elder] who makes sure that they’re heard, the opportunity isn’t always offered’. Another said: I don’t mean to interrupt the separation of powers, and I know that it’s the judiciary’s role to make decisions, but at least for the sake of cultural responsivity and respect, to have those voices and opportunity to be heard in the court and at least make them feel part of the decision-making – there’s an absolute lack of that.
Some participants raised concerns about the under-payment of Elders and the under-funding of Aboriginal organisations. They said that Indigenous courts ‘rely on goodwill’ – there are too few Elders available and they often experience ‘burn out’. One participant said: ‘I just sort of feel that we’re exploiting Aboriginal people by underpaying them. We wouldn’t ask a white person to just come and give us three or four days of work for conduct money’.
Other participants disagreed with the guilty plea requirement for entry into the Youth Murri Court – they felt that children should not have to plead guilty to obtain support from Elders. One participant said: ‘I want the young people to have the benefit of that Elder support and wisdom, without worrying about what you’re going to plead. Let’s just get the support that you need’.
Problem-solving approaches that work well in a youth justice context
Participants drew a distinction between problem-solving courts and problem-solving approaches. While they were not in favour of problem-solving courts for children, many were supportive of problem-solving approaches being mainstreamed into all children’s courts. Two problem-solving approaches were discussed at length by participants: case management and integrated service delivery (particularly for accused children who ‘cycle through’ the children’s courts); and practices that enhance cultural safety.
Case management and integrated service delivery
Participants recognised the value of taking an ‘integrated’, ‘multiagency’, ‘multisystemic’ approach and many discussed the need for ‘wrap-around services’ that targeted families, not just children. They agreed there was a need for: some form of coordination around that young person, to have a single goal: what is the goal for that young person? what is the plan? . . . what’s going to set them up for success beyond court? what’s actually going to help families?
They said this was a positive feature of the Youth Murri Court. Indeed, one participant said: ‘the richness of that program is what happens out in the hallways, happens before court, happens after court. And it’s all the wraparound services that become linked in there’.
Participants agreed that there was a need for ‘intensive case work responses’ to children’s offending. While some participants acknowledged that judicial officers held ‘a kind of informative authority’ – and could ‘compel human services agencies to work together’ and ‘legally compel’ children to engage with therapeutic services – they felt that case management and service delivery should be conducted by community organisations, not the courts. Some supported the use of the ‘big stick’ of the court as a ‘circuit breaker’ to force behavioural change; however, they felt that the court could be supportive and authoritative without acting as the child’s case manager. One participant said: ‘I think there might be some other ways of reporting back, whether that’s through Youth Justice or a relevant agency. And matters could be returned to court if required, perhaps’.
Most participants emphasised the important role that other court staff played in providing case management and referral services to young people, particularly child safety court liaison officers, mental health court liaison officers and court coordinators. Child safety court liaison officers are departmental representatives who can access a central database containing information about every child known to child safety services. Mental health court liaison officers provide fitness assessments for children (including via video-link for children in regional and remote areas) and provide throughcare support and therapeutic services to some children. Court coordinators provide administrative coordination of children’s criminal matters, which includes ensuring court attendance by providing travel passes and ‘remind[ing] them of court’. Court coordinators also ‘liaise with legal reps to see how matters are proceeding’, ‘collect all the information about the young person’, ‘help them avoid warrants being issued’, explore ‘what kind of orders they’d be willing to do’, and assess children’s suitability for certain orders.
While several participants admitted to having ‘some scepticism about those positions when they were first introduced’, most said that the court liaison officers ‘have been quite useful in the court environment’ and ‘have got a lot of potential’. In particular, they noted that court liaison officers: were ‘useful in being able to identify learning disabilities that young people have’; had ‘somewhat streamlined the process’ of ensuring relevant information is available to the court; and offered ‘an effective engagement service’ to ensure ‘referrals are effectively made’. Participants agreed that since ‘kids can sit there for hours waiting to get seen [by the court]’, ‘it’s an ideal opportunity’ for court liaison officers to engage with them because ‘it’s a no pressure environment – you don’t have to go back’.
Having said this, participants acknowledged that ‘the role is as good as the worker makes it’. The best court liaison officers were observed to be ‘passionate’ and ‘fearless’, have frontline experience working with children in the youth justice system (that is, they ‘know how the system operates’ and have ‘worked on the ground with a lot of these kids in different services along the way’), and have ‘the actual power to make change’ rather than simply providing information. Many participants wanted court liaison officers to play a greater role in advocating for children and securing accommodation for young people who were homeless. Some participants made suggestions about other court liaison officers that were needed, including disability court liaison officers to provide more holistic fitness assessments and to link families with disability services. Others suggested that communication assistants, or lay advocates, be available to ‘explain things so that everyone understands them’.
Several participants, particularly First Nations participants, suggested that a First Nations court liaison officer (or ‘cultural liaison person’) be available to all accused children at every court. They said this role should be ‘an identified position’ (i.e. it should be filled by a First Nations person) who can ‘identify referral pathways’ for First Nations children based on existing relationships with Indigenous owned and managed organisations.
Enhancing cultural safety
Participants said that engagement with Elders should be available to all First Nations children who appear before the children’s courts, not just at the Youth Murri Court. They said that both children and their carers benefitted from engaging with Elders. One participant observed: it just seems to have a great impact, whether it’s connecting with the cultural ties, the family feeling that they’re all alone in the world and have no one to turn to. And you can see, sometimes the kids open up a bit more too and start talking. They all hug the elders when they leave. There’s a great deal of respect shown.
Participants wanted all Indigenous children to have an opportunity to ‘meet with the Elders before they go in’ to court, and to be supported by Elders throughout their hearing, ‘then and there, on the day’ rather than having to enrol in a formal program and come back to court each week. Participants agreed that ‘it would be great to have Elders be part of the proceedings in some way. . . to speak to the young people. . . Not even doing reports, but just sort of yarning for them’. They emphasised that there should be a ‘quick referral process for kids that are going to plead guilty on the day, have a chat with the Elders then and there, and then still be able to go’. Participants also called for more First Nations staff at all children’s courts, in all roles. They observed that ‘it helps having that same face to look- like you’re looking at your own self when you’re meeting someone, instead of just meeting, for the lack of a better way of saying it, a white government worker’.
Participants identified other practices of the Youth Murri Court that could be adopted more widely. For example, several said an Acknowledgement of Country should be delivered at the opening of every court session. One participant said: ‘No one has to hear it, it doesn’t have to be in front of the kids who identify, but just do it out of respect’. Some participants said that every First Nations child should be asked ‘what country they come from, or who their mob is – that should be stock standard when you’re reading out the antecedents’. In terms of court design, participants noted that Aboriginal ‘flags, shells’ and artwork are ‘placed around the courtroom’ when the Youth Murri Court is sitting, and they were supportive of these being present in every courtroom. Given that half of all children’s court appearances concern First Nations children, participants agreed that all courts should ‘put culture at the centre’. As one participant remarked: ‘culture has to be central to healing and helping young people to make a change. And when it’s not, it’s just ineffective’.
Discussion
Court liaison programmes and problem-solving courts ‘operate at the interface of two highly complex systems: the criminal justice system and health and social services systems’ (Scott et al., 2016: 211). Given this complexity, a strong evidence base should guide our interventions (Scott et al., 2016: 212; Richards and Lee, 2013: 839). This is particularly so in the context of youth justice, where the consequences of criminal law processes can last a lifetime. While there is limited research on whether a court appearance can itself increase the risk of children reoffending, international research has consistently indicated that ‘less is more’ when it comes to youth justice interventions (Loader et al., 2010). Meanwhile, there is general agreement that therapeutic services may be necessary to enable certain children to construct a pathway out of crime and build a hope for the future (Garrity, 2022; Triggs and Sharp, 2018).
There is some disagreement about the value of problem-solving courts for children in the literature. Garrity (2022) and Sheehan (2013) argue in favour of problem-solving children’s courts, yet a systemic review of the literature undertaken by Madell et al. (2013) failed to find strong evidence of their effectiveness. Madell et al. (2013) observe that ‘most’ problem-solving courts are ‘founded on the principles of therapeutic jurisprudence’ in that their aim is to ‘consider to what extent the law can be applied in a therapeutic way’ (p. 1). However, as James (2006) notes, problem-solving courts ‘are still courts’ and their focus is on ‘justice’ instead of the accused person’s health and well-being (p. 536).
Our participants were supportive of problem-solving approaches, but they did not believe that problem-solving courts translated well into a youth justice context. Having said this, they did not advocate for existing problem-solving children’s courts to be closed down. They emphasised that ‘it’s not just one size fits all’, and that court responses need to be ‘flexible’ within and between jurisdictions. As one participant remarked: I have always been an advocate for the fact that one solution that works here in Cairns [in North Queensland] might not work in Brisbane [in south Queensland]. . . the government needs to allow us the flexibility to run with what’s working on a local level.
Our study took place in an Australian jurisdiction that has some special characteristics. Queensland is a geographically large and diffuse state, and this has several important implications for accused children. For example, children who live in regional or remote areas will often have their cases heard by a generalist magistrate rather than a specialist children’s magistrate. Making all children’s courts ‘problem-solving’ is impractical in this context because not all magistrates who hear children’s matters have the skills required, or the motivation, to case manage children (Crofts et al., 2022). It is undesirable to require children to travel long distances to specialist problem-solving courts because this may mean they are held on remand for longer, and may preclude the attendance of their parents and other support people at the hearing. Furthermore, children in regional or remote areas may not have access to the wide range of health and social services necessary to enable courts to devise an effective intervention plan (Ipsos, 2019; Schaefer and Beriman, 2019). These considerations will have influenced our participants’ views on problem-solving approaches and their effectiveness, and some of their observations may be place-based.
Regardless, we were surprised that our participants did not support an overhaul of traditional children’s courts in favour of a ‘therapeutic’ problem-solving court. Australia’s near neighbour, New Zealand, has long based its youth justice system on restorative conferencing rather than traditional court processing (Lount et al., 2017). Some argue that Australia should similarly ‘reconceive the role of the courts’ by centralising restorative processes and using courts to monitor children’s progress towards an agreed plan (Triggs and Sharp, 2018: 193). Certainly, this and other non-traditional approaches, such as the use of multidisciplinary panels to process accused children instead of courts (in Scotland, see further Deuchar and Sapouna, 2016), are offered as examples of international best practice (McVie, 2011).
Instead, our participants instead recommended that children be kept out of the court system wherever possible. They said children’s needs were best addressed by ‘multidisciplinary’ and ‘interagency’ approaches, and a consistent team of court staff, but that services should be delivered in the community not at the courthouse. Our participants did not want children to be subject to increased surveillance and they did not support judicial monitoring for children. Rather, they wanted the focus of the youth justice system to be on providing children with a ‘different trajectory’ and ‘finding way for the young person to succeed’. As one of our participants concluded: ‘governments are happy to fund . . . the surveillance end of it, and not any of the social support or health support that’s required. That’s the fundamental failing’.
There is support for this in the literature. Garrity (2022: 96) observes that criminalised children need assistance to ‘construct a pathway out of crime’ to ‘help them build what we recognise as a “life”’ (pp. 96, 100). Garrity (2022) emphasises, as did our participants, this will be a ‘distinctly individual’ process (p. 101). McAra and McVie (2010) emphasise that case work with criminalised children should be ‘focused on welfare needs’ and ‘educational inclusion’ (pp. 200–201).
As our participants pointed out, children who commit offences have often interacted with a range of services before coming into the criminal law system, yet there has been no coordinated plan. Taylor (2016) has advocated for a ‘one-child, one-plan system owned and contributed to by all relevant partners’ (p. 14). Our participants agreed, and wondered if court liaison services could assist with this by providing connections between the court and community. They felt that if the court was well-informed about the child’s circumstances, and any opportunities for rehabilitation, this could facilitate appropriate sentencing outcomes. Hunter and Jacobson (2021) agree that having a range of liaison services available to children at court can ‘reduce the social gulf’ between magistrates and children, and ensure that the court has all the information it needs to devise an appropriate sentence (pp. 9–10). However, research suggests the success of liaison and diversion programmes is variable. For example, Scott et al. (2013) found that only a quarter of adults who receive liaison and diversion services act on the advice they receive. On this basis, they concluded that ‘conditionality’ may be needed to ‘reinforce the need to attend treatment’ (Scott et al., 2013: 209). Our participants were strongly of the view that conditionality is inappropriate in a youth justice context. Children are dependent upon adults to support them to comply with conditions, and the more conditions they are subject to, the greater their chances of attracting additional sanctions due to breaches.
Ultimately, our participants felt that problem-solving courts were not the most effective method to ensure children receive treatment and services. Rather, they said that the social service sector, and Indigenous-operated organisations, should be trusted – and adequately funded – to address young people’s needs.
Conclusion
The findings of this research suggest that in Queensland, as elsewhere, children’s criminal courts are ‘left to deal with the effects of deficits in social services provision’ (Hunter and Jacobson, 2021: 11). As James (2006) argues, the need for court diversion schemes is illustrative of inadequate investment in social and community services, and a lack of understanding (and empathy) about the reasons behind young people’s offending (p. 537).
In contrast to media representations that portray children in the youth justice system as a ‘risk to the community’ (e.g. Barton, 2023), our participants invariably spoke of the children they worked with with great affection. One participant remarked: We all have a bit of a soft spot for them. Because you just go, God, what would you be doing at 12 if you had no parent who gave a toss about you at all? You’d be doing- well, potentially, doing exactly what they’re doing and that’s just screaming for help.
Children’s courts need to be responsive to children’s high and complex support needs without imposing too much surveillance. Placing strict behavioural conditions on children, and closely monitoring their compliance, can result in further entrenchment in the criminal law system, when the goal should be to support children to successfully exit it.
Participants in this study were of the view that problem-solving courts were not appropriate for children because they were onerous, intrusive and, potentially, arbitrary. However, they recognised the importance of consistent supportive staff, who were able to take a holistic approach to intervention, to assist children to find a pathway out of crime. When asked ‘what works’ in youth justice, one participant summed up the views of many: The more law we write, the more intervention you’re going to have in people’s lives. That’s just the reality. So, the things that we do that work is have the relationship with the [children] . . . You’ve got to build a relationship up, so then . . . they make choices and move forward.
These things are difficult to legislate for, and certainly there are problems to be solved in youth justice. But the key finding of this research is that creating new and better courts may not be the answer.
Footnotes
Acknowledgements
The authors acknowledge the First Nations peoples that are the Traditional Owners of the lands on which this study was conducted. We recognise their ongoing custodianship of these lands and we pay our respects to their Elders. We offer our heartfelt thanks to the many First Nations people who participated in this research; we are so grateful for the wisdom they shared with them. Many thanks to Laura Rowswell, Rory Brown and Liisa Kuru for their excellent research assistance.
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship and/or publication of this article: This project was funded by the Queensland Department of Children, Youth Justice and Multicultural Affairs and the Queensland Department of Justice and Attorney General.
