The UN Convention on the Rights of the Child (UNCRC), an international human rights treaty, released General Comment 24, in which it recommends that more effort should be made to divert children with developmental difficulties away from criminal proceedings.

The guidance asserts that these children “should not be in the child justice system at all”, but when they are, “should be individually assessed” to enable appropriate safeguards to ensure the protection of their rights without discrimination.

An expert group on youth justice, led by Professor Nathan Hughes, which consulted on General Comment 24 while in draft stage, has welcomed the recommendations, but also highlights five areas in which it suggests further action must be taken globally:

  • Children in conflict with the law should be screened for the presence of neurodevelopmental disabilities at the earliest opportunity.
  • Judicial officers should be trained and supported to understand the ways in which such disabilities might affect a child’s capacity to engage in justice processes.
  • Judicial officers responsible for sentencing should be supported to take account the relevance of identified disabilities to offending behaviour.
  • The use of diversion should be prioritised for children identified with neurodevelopmental disabilities with individualised interventions specifically tailored for their needs.
  • Deprivation of liberty should only be used as a measure of absolute last resort, and those involved in a child’s support and rehabilitation should be aware of a their disability and provide appropriate support.

Hughes, a professor of adolescent health and ustice at the University of Sheffield, believes the needs of young people with brain injuries or other forms of developmental disability is an area globally, including in the UK, where more needs to be done.

“Recognition of the difficulties and vulnerabilities of these young people is much stronger now. There are pockets of good practice but to try and change day to day practice [everywhere] is a bit more of a of a challenge.

“We see some prisons that have done good work in terms of putting in specific support, but we’re still a long way from having a system which is entirely responsive to the needs of young people, a system that’s recognising where someone’s presenting with a certain sort of difficulty and then knowing what accommodations to put in place to support them,” he says.

“The arguments in our recommendations are that if you’re not recognising the kind of underlying disability that’s going on, you put into place the wrong course of action. So either you misinterpret something as being about behaviour and you don’t see it as a disability that needs to be supported, or you give them the wrong intervention.

“So they get a criminal justice intervention that tries to challenge the way in which they’re thinking and get them to identify and modify their behaviour.

“But actually, if you don’t understand that the root cause of that behaviour is someone’s impulsivity because of their brain injury, for example, then when they’re next in that situation, they may just continue to behave in the same way.

On General Comment 24, he says: “It doesn’t mean every country is now going to get really good at identifying traumatic brain injury and doing something about it. Even in high income countries like the UK we haven’t got to grips with it properly. It’s a slow burner rather than an immediate kind of change of practice.

“The UN in itself won’t directly change the practices overnight, but now there will be regulators and the UN will ask questions of every state to find out how they are responding to General Comment 24 – there will be pressure to do this and to implement rights.

“But the key things for us is that it has been addressed. It’s raising the international profile of the fact that vulnerable young people are being criminalised by current practices and it needs to stop.

“It’s a strong signifier that neurodevelopmental disability is now being seen as a real important vulnerability in terms of people’s engagement with criminal justice systems and their criminalisation.”