Public Defenders

Out-of-Home Care

Executive Summary

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Research shows a significant correlation between juvenile involvement in criminal activity, a history of abuse or neglect, and a history of being placed in care.1 Care experience and juvenile detention have been described as ‘key drivers of adult incarceration’.2 Aboriginal and Torres Strait Islander children are placed in care at a rate 11 times that of non-Indigenous children.3

The psychological and emotional impacts of experiences of out-of-home care may include:

  • low self-esteem;
  • depression;
  • fear;
  • distrust;
  • anger;
  • shame and guilt; and
  • difficulties forming and maintaining trust in relationships.4

These impacts, including post-traumatic stress, may manifest in behaviours such as risk-taking; poor impulse control; resistance to boundaries (such as being absent from care without permission); stress intolerance; alcohol and other substance abuse; self-harming behaviours; social isolation; limited capacity to form relationships with peers and/or adults; sexually inappropriate, anti-social behaviour; and/or potentially criminal behaviour.5

Experiences of out-of-home care have also been linked to poorer educational performance and greater risk of being suspended or expelled because of behavioural problems or truancy.6

Care leavers often face limited employment opportunities which may result in a lifetime of financial hardship.7 Time spent in care has also been found to significantly increase a child's chances of becoming homeless.8

The potential relevance of evidence of experiences of out-of-home-care in sentencing proceedings includes an assessment of moral culpability; moderating the weight to be given to general deterrence; determining the weight to be given to specific deterrence and the protection of the community.

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[1] Australian Law Reform Commission, Family Violence – A National Legal Response (Report No 114, 2010) 973. See also New South Wales, Special Commission of Inquiry into Child Protection Services in NSW (n 1) 556 [15.1]; Australian Institute of Health and Welfare, Young People in Child Protection and Under Youth Justice Supervision 2014–15 (Data Linkage Series No 23, 2016) 11; Katherine McFarlane, 'Care-Criminalisation: The Involvement of Children in Out of Home Care in the NSW Criminal Justice System' (PhD Thesis, University of New South Wales, 2015) 75–86; Senate Community Affairs References Committee, Parliament of Australia, Forgotten Australians: A Report on Australians Who Experienced Institutional or Out-of-Home Care as Children (Report, August 2004) 164 ('Forgotten Australians'); Australian Law Reform Commission, Pathways to Justice – Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (Report No 133, 2018) 485 [15.1] ('Pathways to Justice').

[2] Australian Law Reform Commission, Pathways to Justice 485 [15.1]. 

[3] Australian Institute of Health and Welfare, Child Protection Australia 2017–18 (Child Welfare Series No 70, 8 March 2019) 53.

[4] Senate Community Affairs References Committee, Parliament of Australia, Forgotten Australians 145–6.

[5] NSW Ombudsman, 'Joint Protocol to Reduce the Contact of Young People in Residential Out-of-Home-Care with the Criminal Justice System' (2016) 5 [2.1].

[6] New South Wales, Special Commission of Inquiry into Child Protection Services in NSW (n 1) 620 [16.135].

[7] Senate Community Affairs References Committee, Parliament of Australia, Forgotten Australians 160 [6.37]–[6.39], 163 [6.46].

[8] Human Rights and Equal Opportunity Commission, Our Homeless Children: Report of the National Inquiry into Homeless Children (10 February 1989) 109 [10.4].