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Jewel in the Crown: Why Referral Orders fail to shine in a Child First world

Published onMar 28, 2024
Jewel in the Crown: Why Referral Orders fail to shine in a Child First world
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Abstract

Referral Orders are a key Youth Justice disposals available to children who are justice experienced and represent the first rung on the statutory Order ladder. A defining feature of Referral Orders is the Referral Order Panel Meeting and Contract where trained members of the public discuss the Order with the child and decide on what elements constitute the Panel Contract. However, with change on the horizon, the Referral Order in its current iteration, fails to deliver and comes in conflict with the welfarist positioning of Child First. This small scale study explores the views of Youth Justice practitioners on the Referral Order process, identifies key themes and shortcomings of Referral Orders and suggests a potential Child First way forward. Further areas of research are also identified.

Key Words: Youth Justice, Referral Orders, Child First, Youth Justice Panels

In the year ending March 2021, the UK government reported 12,200 youth sentencing occasions in England and Wales, of which 49.1% (c. 6000) were Referral Orders (UK Government & Youth Justice Board of England and Wales, 2022). Referral orders became a staple of Youth Court sentencing in 2002 under the new Powers of the Criminal Courts (Sentencing) Act 2000 (HMIP, 2016) and referred to as ‘the Jewel in the crown of Youth Justice’ by a previous Chair of the Youth Justice Board (Morgan, 2007). The Referral Order was a specific Youth Court Order based on the three principles of Restoration, Reparation and Reintegration (MOJ & YJB, 2018).

In brief, a Referral Order is characterised by attendance at a Referral Order Panel meeting, around 20 days after the initial sentence in a Youth Court. The referral Order Panel consists of two trained members of the public, representing the local community, who discuss with the child, and carer or parent, what work they would like to be completed during the Referral Order period, which lasts between 3 to 12 months, and create a contract for the child. This work could include reparation hours, specific intervention work such as victim awareness and any voluntary activities such as education support. Once the contract is signed, the Referral Order period starts, and the child works alongside an allocated Youth Justice Practitioner to complete the identified work. A review of progress is usually held every 3 months until the end of the order (see MOJ & YJB, 2018 & Stone, 2019).

The YJB Referral Order Guidance (MOJ & YJB, 2018), stipulates the Referral order process and describes how a panel meeting should be conducted, along with the roles of the volunteer panel members and the Youth Justice case manager. The guidance identifies that the victim of the offence should be consulted prior to the meeting and potentially invited to attend. In attending the panel meetings, the guidance suggests, the child who has been sentenced can start the Restorative Justice process directly with the victim, in a process of reintegrative shaming (Case et al., 2022), to aid desistance. The Guidance also identifies suitable Panel members as reflecting the demographic profile of the local area and possessing local knowledge to inform their individualised contract agreement (MOJ & YJB, 2018). The guidance goes on to specify Panel members as objective, possess good judgement, ability to engage young people an ability to work without prejudice and possess realistic expectations, amongst others (ibid).

The overarching aim of the Referral Order was to provide direct accountability to the Child by members of their community and provide an opportunity to repair the harm to the victim (MOJ & YJB, 2018). The Referral Order was considered a success with 12,039 Referral Orders being sentenced in the year to March 2015 (HMIP, 2016). In 2016, HM Inspectorate of Probation published a critical report on the delivery of Referral Orders and highlighted some key issues concerning the consistency of the Referral Order process (HMIP, 2016). These criticisms included the personalisation of the Referral Order contract, or lack thereof, children not being provided opportunity to understand or influence the process, hostility or professional arrogance from practitioners towards panel members and panel members being reluctant or shy to challenge children or parents. A separate issue identified within the report is confusion over who suggests the Referral Order contract contents, due to conflicting messages from YJB Case Management Guidance (YJB, 2022) and the Statutory Guidance (GOV.UK, 2018), messaging which is still present in both documents in 2023.

Following this, in 2018, the Youth Justice Board for England and Wales (YJB) issued updated referral Order guidance addressing some of the issues raised and effectively trying to firm up the process (MOJ & YJB, 2018). In October 2022, the YJB issued updated Case Management guidance for Youth Justice Practitioners which detailed how Orders are to be administered as an addition to pre-existing, Order-specific guidance (Youth Justice Board for England and Wales, 2022). In this guidance, the YJB identifies ‘Child First’ as the guiding principle for Youth Justice, following its inclusion in the YJB Strategic Plan 2021-2024 (Youth Justice Board for England and Wales, 2021). At its core, Child First is a welfare focussed, child-centred approach to Youth Justice, based upon the ‘Child First, Offenders Second’ model utilised in Wales (Haines & Case, 2015). The Child First approach identifies 4 key tenets upon which the Youth Justice System should be based; See children as children, not offenders (T1), Develop pro-social identities for positive child outcomes (T2), Collaboration with Children (T3) and Promote Diversion (T4) (Case & Browning, 2021 & Case & Hazel, 2023). To ensure Youth Justice disposals provide the child with support and opportunity whilst ensuring victims of crime are heard, it is important to view the current process through the lens of new guidance to ensure their purpose is clear and their delivery is cognizant with the most recent guidance…in short, do they do what they are meant to do?

Newbury describes Referral Orders as inherently ‘responibilising’, allowing a child and their family to take responsibility for the behaviour which led to the conviction and repair the harm to the community via the Referral Order Panels (Newbury, 2008). The notion of responsibilising children is in direct challenge to the Child First principles; Seeing children as children, not offenders (T1) and Developing Pro Social Identities (T2) (Case & Browning, 2021). Child First states that by responsibilising children, one assumes the child is solely responsible for their behaviour and their desistance from it, thereby disregarding any mitigating factors, such as levels of capacity, maturity levels, understanding and age-related differences (Case & Browning, 2021 & Case & Hazel, 2023).

Reparation within the Referral order contract represents a further problematic area. Reparation typically describes an element of unpaid work within the contract, where the child gives up a prescribed amount of their free time to complete community tasks as a way to give back to the community. It is noted that reparation often replaces restorative justice conferences in line with the victim’s wishes. The referral order guidance specifies that ‘reparation is a fundamental part of the Referral Order and a key element in each panel contract’ (MOJ & YJB, 2018), however criticism of reparation and its blanket application has been widely discussed. The key criticisms include the reparation tasks are often menial and bear no link to the offending behaviour, it can appear tokenistic and a box-ticking exercise where the child gains few skills during the process (Pamment, 2016). Indeed, the notion of reparation is closely linked to, and based upon, the community service model, later known as community payback within adult criminal justice (Pamment, 2019), which, within the Child First principles could be considered labelling, responsibilising and, with little benefit or individualisation for the child, a punitive, anti-child first exercise. Indeed, Case et al (2022) reviewed that reparation activities provided little benefit in terms of a child’s feelings of remorse, recognition or feelings of wrongdoing adding that some victims felt reparation was a waste of time (Case et al, 2022).

Referral Orders have been described as ‘the jewel in the Youth Justice crown’ and used as the primary sentence issued by Courts, representing the third step on the sanctions escalator (behind Cautions and Youth Conditional Cautions) (Aertsen et al., 2012 & Morgan, 2007). Dame Glenys Stacey described Referral Orders as ‘consistently more effective than other sentences’ (HMIP, 2016) however it remains unclear why they are more effective than other sentences. One possible reason for this is that a Referral Order represents the lowest level of sanction that involves statutory contact, therefore providing professional support to a child and allowing the child to experience a consequence linked to their behaviour. This seems to be an under-researched area, but this initial professional contact, within a legal framework, could be a key desistance factor, providing the illusion that the Referral Order is effective, rather than the professional contact.

Within the 2016 Inspectorate of Probation report ‘Referral Orders – do they achieve their potential?’, issues around community panel meetings are raised, citing an inconsistent approach, panel members presenting as reluctant or shy to discuss difficult issues and a noted punitive element to the meetings. Another criticism suggested in the report is that children and families had little input into the contract and were instead made to feel that it had already been decided (HMIP, 2016). This, again, demonstrates a direct challenge to Child First principles that are at the heart of the Youth Justice Boards’ current philosophy (Youth Justice Board for England and Wales, 2021). Child First - Tenet 3, focuses on ‘Collaboration with children’ and therefore should provide an opportunity for children to have meaningful input into the order at a level that is achievable and realistic. Tenet 1 reiterates that children should be seen as children, not offenders, and Tenet 2 states that professionals should be working to promote a pro-social identity for children; one must therefore question whether an examination of the behaviour, a discussion about their role in the behaviour and then telling the child what they will need to do to make up for the harm, by strangers in a position of power, adheres to the Child First principles?

A further criticism of Referral Order panels focussed on the panel members. The HMIP Inspectorate report identified that on the whole, panel members didn’t represent the wider community, citing that the majority of panel members were ‘middle-aged and middle class’ (HMIP, 2016). The report also suggests that the majority of panel members observed were susceptible to making assumptions, lacked understanding of communities affected most by offending and maintained a ‘holding to account’ punitive approach (HMIP, 2016). These observations suggest Referral Order panels are not only anti Child First but, in some cases, potentially punishing, ill-informed or harmful. This sentiment is reiterated by findings within Stahlkopf’s (2009) study which identified Youth Panels as lacking relationships with children and using coercive tactics to ensure children agree to the panel contract, elements of which were prescribed from an available menu (Rosenblatt, 2014), which could raise questions around how individualistic panel contracts are.

It is noted that HMIP identified that a majority of the Youth Justice practitioners observed, failed to recognise the value of panels and in some cases approached the meeting with ‘professional arrogance’ (HMIP, 2016). Although this observation is disappointing, Day (2022) suggests it is crucial to meaningfully engage with Youth Justice Practitioners on their views of the processes of Youth Justice as they are best placed to understand the issues and how to overcome them. Although participation is discussed later in the paper, it was for this reason that this paper sought the views of practitioners on the Referral Order Process and its adherence to Child First guidance.

Referral Orders have received more general criticism in recent years due to their availability only being reserved for children who plead guilty to an offence within a court setting. Should the matter move to a trial setting, the minimum sentence threshold is a more restrictive Youth Rehabilitation Order (Sentencing Council, 2017). Helm (2021) cites issues around the incentivisation of a guilty plea on a child’s developing brain, which must weigh up consequences of entering pleas, regardless of whether the child committed the offending act. The implications of this directly link to Sherman’s (1993) defiance theory which suggests if someone feels they have been unfairly punished, they are more likely to commit (further) offences, which raises somewhat of an offending paradox; innocent child feels pressured to enter guilty pleas, feels they are unfairly punished, goes on to commit a ‘further’ offence, as they are already being treated as an offender. As judicial process sits outside the provision of Child First, this is raised to demonstrate the challenges Child First faces throughout the Criminal Justice pathway, adding further focus on tenet 4: Diversion as a means to address offending behaviours.

Victim involvement in the Referral Order process has been raised as a key stipulation within the guidance (MOJ & YJB, 2018), as it is believed this could trigger the reintegrative shaming process (Case et al., 2022), and further desistance. Several studies have identified that victim engagement in the Referral Order process is low to non existent (HMIP, 2016. Case et al, 2022, Newbury, 2011), which could be for several reasons. Case et al (2022) identified potential reasons could be due to the seriousness/triviality of the offence, panel timings and the method used to contact the victim. The centrality of the victim ‘role’ within a Child First Youth Justice is questionable, as victims aren’t discussed within the Child First guidance (Case and Browning, 2022). An interpretation of the Child First Guidance could suggest that referring to the victim of a crime, could be a challenge to tenet 2: developing pro social identities, by confronting the child with the real life consequences of their actions and potentially a challenge to tenet 1: seeing children as children, due to the responsibilising characterisation of victim contact.

In their current form, Referral Orders present a challenge for developing Child First practice with clear areas of friction, namely, the panel meetings, reparation and the panel contract, amongst others. With the implementation of Child First, a full appraisal of the current Youth Justice praxis is required, including a review of the current sentencing guidelines. Although beyond the scope of this small-scale research project, which is part of a larger piece of research, seeks to understand referral order effectiveness from a practitioner perspective and whether Referral Orders adhere to a welfarist, Child First approach.

METHODS

The data presented in this paper is part of a wider research project examining the application of Child First within the Youth Justice System. This paper draws on research involving 5 Practitioners from one Youth Justice Service in England. This Youth Justice Service holds the average number of Referral Orders when compared to similar Justice Services. Potential participants were identified on the criteria of having a referral order allocated to them within the last 3 months. This narrowed the potential participation population numbers to 8 practitioners, who had all received multiple Referral Orders to supervise. Participation information was sent, and consent was received from 5 participants who then completed a short qualitative survey on their experience of the referral order. This represented a 62.5% participation. No personal details of the participants or the Referral Order specifics were held, and the questionnaire was entirely anonymous. The response window remained open for one week after which the qualitative data was thematically coded using NVivo software using a thematically inductive approach (Braun & Clarke, 2006). As this is a small scale study with five participants the author takes a cautionary tone when extrapolating data across the Youth Justice estate and response inclusion serves to illustrate or challenge points made within the paper as a whole. Due to the anonymous nature of the survey, the author is unable to state the gender divide or years of service.

FINDINGS

Effective

Generally, the practitioners deemed Referral Orders to be an effective initial statutory order. Participant 2 noted ‘First stage order and some young people are not seen again, they provide an opportunity to intervene and support [children] in a variety of areas of their life’. Participant 1 suggested that Referral orders ‘keep [children] from more punitive orders’ and Participant 6 noted ‘the orders have a timescale attached which is often proportionate to the offence and the interventions are achievable for the young person’. These comments suggest general support for the Referral Order and acknowledge its place as a sentencing option. The comments suggest Referral Orders can be used as a welfare tool by providing support and allowing time to steer away from more punishing and restrictive orders such as a Youth rehabilitation Order and suggests practitioners value the Referral Order as a proportionate, early intervention process. These comments demonstrate the value Referral Orders bring to the Youth Justice System and potentially illustrates the need for such Orders.

Punitive

Punitive was a theme that kept on appearing throughout the responses, especially when discussing Panel meetings. Participant 3 noted ‘The panel members can sometimes have a judgemental approach, talk down to the young person and can be quite patronising’. Participant 4 noted ‘Panel Meetings can be repetitive and end up putting the child in a position of re-telling their story’, and Participant 5 commented ‘[Panel meetings are] another source of shame/ judgement’. Participant 6 simply said that Panel meetings ‘feel like a retrial’. These alarming comments position Referral Orders, or more accurately the Panel meetings, as punishing environments which appear to be the antithesis of a Child First process. Based on the participants comments, words such as Patronising, Shame and Retrial appear to place the Panel Members at the centre of the process and in a position of power over the child, during what is supposed to be a collaborative process, in opposition to tenet one: seeing children as children and tenet 3: Collaboration with children. The retelling of offence accounts and appearing to have a judgemental approach directly challenges tenet two: Developing pro social identities, due to the anchoring of the offence at the centre of the interaction and the revisiting of their account.

Detached

A final theme identified within the responses was Detached. Participant 6 notes, ‘I find that the panel members are usually retired, privilege white members who are detached from the real/front line issues and needs of young people’. Participant 4 suggested ‘It feels like strangers are giving the young person things to do when they don't know what is going on for the young person. Even when positive feedback is given the young person likes to hear it, but it doesn’t mean anything and is a bit empty and there is no context as it is people they don't know giving it to them’. Participant 2 added ‘Contracts continue to include offence-focused/ cognitive interventions which do not reflect [the child’s] stage in terms of Trauma Informed perspective and readiness’. The detachment identified is binary, with separatedness between the child and the Panel members and separatedness from the child and the interventions/contract. These themes are echoed above and provide a scenario where Referral Order administration, panel meetings and Order objectives are done to the child, by individuals seen to be in power. The comments allude to the ‘community member’ aspect of a Panel Member, becoming anyone who lives in the wider population, regardless of their differing backgrounds and values. This overall detachedness is a further risk to Child First practice, and as Referral Orders are the lowest level statutory Order, could provide a large number of children and practitioners with unnecessary obstacles regarding collaboration.

DISCUSSION

The practitioners who participated in this research raised some interesting points regarding the Referral Order. Practitioners felt the Referral Order was an effective order and was able to address offending behaviour due to the, generally, proportionate sentencing. The comments have highlighted that the flexibility around the order is effective, and, with achievable interventions, Referral Orders can divert from further criminalisation or further scaling of the punitive ladder. These findings are largely consistent with the HMIP report (HMIP, 2016) stating that Referral Orders are more effective than other Orders. The question remains whether their effectiveness lies within the current Referral Order process or their first statutory, criminal justice, contact characteristic, however, this is beyond the scope of this paper and may prove fruitful research in the future. On cursory inspection, the Referral Order could adhere to Child First guidance as it could be considered diversionary from higher impact orders such as Youth rehabilitation Orders, focussed on the child and the work completed is guided by the child. It would be a straightforward process to adjust the focus of Referral orders to create pro-social identities in a way that is meaningful to the child, thereby making the referral order fully Child First compliant.

The issues arise when Panel Meetings are discussed. This may be due, in part, to practitioners failing to acknowledge the importance of the meeting, as previously discussed, however consistent criticism was raised around the procedure, which raises concerns over the benefits of the Panel meetings and whether they can be considered Child First. The central tenets of Child First are to See children as children, not offenders (T1), Develop pro-social identities for positive child outcomes (T2), Collaboration with Children (T3) and Promote Diversion (T4) (Case & Browning, 2021 & Case & Hazel, 2023). It is hard to assimilate these principles with a practice which has been described as ‘empty and without context’, ‘a source of shame/judgement’ and feeling like ‘a retrial’. The additional responsibilising and reparative elements of the panel meeting also fall short of the Child First expectations, yet are still detailed and promoted within the referral order guidance issued by the Youth Justice Board (MOJ & YJB, 2018), creating contradictory and confusing delivery guidance when viewed alongside the Case Manager guidance (Youth Justice Board for England and Wales, 2022) and the YJB strategic plan (Youth Justice Board for England and Wales, 2021) which promote a Child First approach.

The adoption of the Child First principles has provided the Youth Justice Board with an opportunity to revolutionise Youth Justice across England and Wales and provide a child-centred, welfarist and positive Justice to all children in the Criminal Justice System. However, by maintaining and endorsing the structures currently within the Youth Justice System, or bringing in alterations in a piecemeal way, the progression of the Child First aims is being inhibited. This view is echoed by Case, Browning and Hampson (2023) who view progression towards a Child First Youth Justice as underdeveloped, incongruent with ongoing practices and remains as a concept for Youth Justice due to procedural barriers.

With the recent inception of the Turnaround programme (GOV.UK, 2023), children who have become known to services, or have received a low level sanction such as an Acceptable Behaviour Contract (ABC) or Police caution can be diverted from the criminal justice system in a supported and holistic way and in full adherence of tenet 4: Promote Diversion (Case and Browning, 2021). With this robust diversion provision and the continuation of higher level orders such as Youth Rehabilitation Orders (YROs) and Detention and Training Orders (DTOs) for more persistent offenders, one could ask whether Referral orders are relevant within Youth Justice and whether total removal of Referral Orders would streamline the Youth Justice pathway, providing multiple diversion opportunities, followed by a Youth Rehabilitation Order if offending persists. However, as raised in some of the participant comments, the Referral order does provide children a statutory opportunity to work with someone to address trauma, behaviour or other external concerns for a prolonged amount of time. It is clear Referral Orders provide a benefit to children, the focus should instead be on how they fit with Child First.

Luckily, ensuring Referral Orders adhere to Child First guidance is a fairly straightforward process. Practitioners and experts alike agree there is benefit in the Referral Order, as an initial, statutory Order (HMIP, 2016). It has proved itself to be an effective sentence for first-time entrants (FTEs) and can deliver justice in a child-centred, collaborative way. The Child First conflict lies within the Panel meetings, including the facilitation by panel members, and the items included in the Panel Contract. Removal of the panel meeting process allows the practitioner to work collaboratively with the child to develop their own contract, as a trusted professional with whom they have a pro-social relationship and will work long term. Supervision of the order would last as long as the agreed work lasts, adhering to the minimal intervention principle of tenet 4: Promote Diversion (Case & Browning, 2021 & Case & Hazel, 2023). This adaptation necessitates the removal of the Referral Order Panel and Referral Order Panel Meeting, and therefore the removal of reparation and ‘re trialling’ children.

It is noted that this paper focussed the practitioner views of the Referral Order process, rather than the child’s own view. As acknowledged earlier in this paper, this relationship has been identified as difficult and involving professional arrogance from practitioners (HMIP, 2016), so some views may not be overly surprising. indeed, future research on the child’s view of the process may prove fruitful in identify further issues, however that was beyond the scope of this paper.

CONCLUSION

Referral Orders have demonstrated their value in reducing reoffending since their inception in 2002 and have been a key feature within community disposals within Youth Justice. With the adoption of the Child First principles by the YJB, Youth Justice is in a period of negotiating the old way of working with the new. Research, further supported by practitioner comments within this study, illustrate the value Referral orders provide as a primary statutory Order. When viewed through a Child First lens, conflict focusses on the panel meetings and panel contract. It is suggested that Referral Order Panel meetings can appear as punitive, uncollaborative, and detached from the child who is often shamed and coerced to sign panel contracts for the meeting to end. Elements of this were suggested in research from Rosenblatt (2014), the HMIP inspection report (2016) and again in this paper. It is clear panel meetings haven’t evolved to meet the needs of today’s children within the Criminal justice System, and with a potential paradigm shift on the horizon, an opportunity to radically realign Youth Justice, to Child First principles, appears. Ensuring Referral Orders align with Child First principles, ensures their continued use within Youth Justice and continued benefit for children who are justice experienced. Removal of the panel meeting and contract provides further opportunity for collaboration on the child’s terms and protects them from feeling judged, re-trialled or shamed. Maintaining Referral Orders in their current presentation promotes confusion and conflict within a Child First Justice system which requires a significant shift in procedures and processes. By maintaining the status quo or attempting to justify the status quo as Child First, ensures progress towards a welfarist, child centred way of working will be impeded to the detriment of children who are justice experienced.

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