Introduction

The purpose of this paper is to conceptualise the under-protection of young people in custody with Neurodivergent and Special Educational Needs (SEN). Young people with SEN commonly have learning problems or disabilities that make it harder for them to learn than most young people their age (Cruise et al, 2011), and young people with neurodivergent needs are described as differing in mental or neurological function from what is considered from ‘normal’ (Kirby, 2021). These young people are inherently more likely to plunge into the Youth Justice System (YJS), compared to young people without such impairments (Talbot, 2010) – with 25% of young offenders having special needs (Prison Reform Trust, 2010). Young people with SEN are adulterized, and do not receive suitable provision for their needs when moving through the YJS (Anderson et al, 2016). Consequently, the lack of support and funding for youth mental health services will inherently impact these young people’s risk of criminalisation (Pedruzzi et al, 2021). Young people with SEN require special attention yet are under-protected by authorities and over-represented in youth justice.

Background

Research into disproportionate custodial sentences for young people with neuro-diverse needs has stipulated that young people with Special Educational Needs receive little to no support despite being assessed for learning difficulties (Day et al, 2020). Hughes and Peirse-O’Byrne (2016: 14) found that 23-32% of young people in custody have learning disabilities. Additionally, Kirby (2021) concludes that 15% of young people in custody are on the Autistic spectrum, compared to only 0.6-1.2% in the general population. Neuro-diverse young people are overrepresented in the YJS, and do not receive the academic provision that is ‘key for their cognitive development’ (Parsons and Platt, 2014: 4).

The Current Research

Factors disproportionately impacting a young person’s risk of entering the YJS include family, unemployment, schooling, and special education needs (SEN). Young people with SEN are systematically disadvantaged in the YJS and in education due to the failure to recognise disabilities at a young age. For instance, young people with ADHD may be labelled by their teachers as disruptive and distractive, potentially causing them to reoffend because they identify with the label of an offender in educational institutions (Taylor, 2016: 18). Furthermore, many young people in custody have speech impairments (Anderson et al, 2016), and some may have been incarcerated due to their inability to understand what was being asked of them. Young people with dyslexia may struggle to read the terms and conditions of their parole, further criminalising them (Baldry et al, 2017).

Moreover, we must investigate the practice of off-rolling in schools and in-school discrimination. Off-rolling occurs when a child labelled as disruptive is disproportionately excluded to ensure positive results in Ofsted inspections and league tables (Owen, 2019). Timpson (2019: 36) discovered that SEN young people accounted for 46.7% of all permanent exclusions. The highest rate of exclusion is in year 10, and 30% of special education needs pupils left their school between year 10 and 11 (Ofsted, 2017, in Long and Danechi, 2020). Finally, Cole and Heilig (2011: 307) claim that young people are ‘experiencing education in an increasingly punitive way’ that mirrors the YJS, through rules and sanctions. McGrew (2016) introduced the notion of the ‘school to prison pipeline’ that established a causal relationship between the removal of young people with poor behaviour and incarceration rates.

For young people who do not receive support for their learning difficulties at home or school, it is possible that their exclusion rationalises a disregard for their future, as argued by Salole and Abdulle (2015: 130) who contend that ‘young people with little support for their complex needs, may completely disengage from their education, or rebel – due to them being responsibilized for their educational struggles despite the possibility of them being unable to understand what is expected from them’. Research has found that little is done to support young people with mental health and disability needs, and in some cases, young people are excluded because their disability is misinterpreted as poor behaviour (Oberg, 2017, Day et al, 2020). Poor communication may result in difficulties of expressing emotions, meaning neuro-diverse young people may display challenging behaviour, especially if they are non-verbal (Ryan et al, 2013).

The Case for Change

It is of paramount importance that young people are screened for their learning needs early in school, so that intervention can be implemented for neuro-diverse young people where necessary. Burns et al (1995) discovered a significant gap between the mental health needs of young people, and mental health services that are available to them. However, ‘when implemented properly, with appropriate family, community and school involvement, mental health screening in schools has the potential to be a cornerstone for transforming a mental health system that identifies youths in need’ (West et al, 2007: 57).

The Comprehensive Health Assessment Tool (CHAT) is a method of screening young people in the Secure Estate that keeps a consistent record of information (Shaw, et al, 2013). CHAT found that once a disability was flagged in custody, the needs of the child were not met, neither did it inform the practices of the staff working with the young people which could have assisted in their learning and support (Hughes and Peirse-O’Byrne, 2016). Repeated and intense contact with agencies of youth justice may damage young people both psychologically and physically in the long term (Goldson, 2005).

Hughes et al (2020) claim that young people with SEN should not enter the YJS and acknowledges that they require extra support for their learning needs which they may not receive from their family or school. This case is based on principles set forth by the United Nation Conventions on the Right of the Child (UNCRC, 1990), including non-discrimination; devotion to the best interests of the child; the right life, survival, and development; respect for the views of the child. It is crucial to consider these principles when a child with SEN is in custody, for their best interests must be considered. A disabled child should not enter the YJS if they have committed a crime but should be placed into a care-based establishment (Bateman, 2016).

CAMHS is in a state of crisis (Healthwatch, 2019) and demand for mental health support services has increased but funding has stagnated. Between 2013/2014 and 2014/2015, referral rates have increased five times faster than the CAMHS workforce (Health Watch, 2019).

Young people in care homes are 4 times more likely to have special education needs than young people not in the care system and are 5 times more likely to be permanently excluded from school (Department for Education, 2018, 2019). Furthermore, the care system can accelerate young people into the YJS by criminalising them at a disproportionate rate. In March 2016, ‘71% of young people in residential care that had been convicted or subject to a final warning, were found to have had emotional or behavioural health that was of borderline or actual concern’ (The Howard League for Penal Reform, 2017).

Custodial sentencing for young people with SEN is futile (Goldson et al, 2021), as they are over-regulated for minor offences. Imprisonment for young people with learning impediments is the last in a series of negative experiences in which family and state have failed to steer them away from trouble (Lyon, 2021). These young people need academic, disability and mental health support to break from the cycle of justice (Bernard, 2002). Young people may offend against a system that is unable to cater to their disability and mental health needs, and subsequently develop negative emotions towards the law, delving them deeper into the YJS (Agnew, 2002).

Goldson et al (2021) claim that young people who have communication difficulties such as Dyslexia, Autism and ADHD are more likely to experience disproportionate sentencing, because they may be unable to response appropriately and not understand what is being asked of them by the prosecution (Harrington et al, 2005). Additionally, they are not always provided with an appropriate adult in custody and hence do not understand why they are there, or what is expected from them (Talbot, 2008).

Young people’s neuro-diverse conditions can be worsened by the environment of custody, which can inflict harm on mental health conditions, leading young people to develop depression, anxiety, and even self-harm (Day, 2021). Whilst awaiting sentencing young people may be remanded to a cell where they can be isolated for up 22 hours a day (Beard, 2020). There are concerns surrounding the use of isolation in custody and its harmful effects on disabled young people (Case and Haines, 2020). Young people whose communication is affected by their impairment may be viewed by the police and courts as non-compliant and even hostile (Fitzpatrick, 2014), and their needs misconstrued as risks (Hampson, 2018).

Remedies

The core recommendation is to eradicate custodial sentencing and imprisonment for young people with SEN and replace them with Secure Children’s Housing (SCH’s). SCH’s are establishments for young people aged 10-17 who have been sentenced as a result of committing a crime based on welfare grounds and/or penal orders (Bateman, 2019: 4). They employ staff who have been trained for the educational and therapeutic provision of neuro-diverse young people (Howard League, 2012: 4).

Secure schools would provide appropriate rehabilitation of young offenders with learning difficulties and provide them with the education that they may otherwise miss out on if placed in a Young Offenders’ Institution (Bateman 2016). These schools would also ensure that disabled young people are supported properly in a setting where lessons are compulsory and non-avoidable (Fitzpatrick, 2014). It is essential that young people receive an education, to deter them from criminality (Haines et al, 2012), allow them to build their creativity, and expose them to ideas that might generate a career path (Capriola, 2019). Young people placed into an SCH would be living in a secure facility that mirrors the environment of a school, and therefore would reduce the damaging effects of custody.

Funding to mental health services in England and Wales is pivotal to ensure that investment reaches the front line (Bailey and Knightsmith, 2017), as these services will work alongside the SCH’s to ensure that young people who have pre-existing mental health problems or are likely to develop them in comorbidity of their disability, receive extra support immediately. Additionally, Day et al’s (2020) research into the Asset Plus assessment discovered that young people underwent speech and language assessment; however, the results of these tests were not put into practice, meaning young people did not receive significant provision. In custody, there tends to be a significant focus on cognitive behavioural techniques to address offending behaviour; however, these methods are inappropriate for neuro-diverse young people (Snow and Powell, 2012). Young people should be screened in school (Hughes and Chitsabesan, 2015) to ensure they are supported as soon as they enter the YJS, avoiding malpractice when SEN young people are sentenced.

The Taylor Review (2016: 36) indicated that staff working within the YJS did not have the sufficient skills required to support the most vulnerable population of young people. Anderson et al (2016: 200) contends that the ‘provision of appropriate intervention for youths with language impairments needs to be embraced by agencies that deal with youth offenders’. I advocate that only specially trained mental health workers and disability-supporting teachers should be employed within these institutions, as the care they provide is in the best interests of a neuro-diverse child who has offended, for they would also receive the best mental health and disability support, as well as receiving a high-quality education. Additionally, I recommend piloting a new employment scheme to ensure a focus on helping SEN young people into employment, with work-focused interviews to assist young people who are transitioning back into society, to ensure mental health well-being, and education (Clarke et al, 2005).

Conclusion

The issue of custodial sentences for young people with SEN needs reform. I have sought to convey the current problems surrounding the needs of young people in custody, whose needs are overlooked in education, and the trauma that custody can impose upon young people’s physical and mental health. To support young people with SEN who have committed an offence as effectively as possible, their disabilities must be properly identified via screening early on in education, and a care and risk assessment plan must be created and implemented (Day et al, 2020). Finally, young people with neuro-divergent needs should be in safe environments, where they receive education to give them the best start in life and deter them from criminality. Here, they can be encouraged to express themselves (Youth Justice Board, 2019), with the support of expertly trained staff, family, and the community.