Getting it right in the courts

DFNZ has been working in the youth justice space since 2015, a natural progression from its work in education – given that students who are disengaged at school may become alienated, depressed or susceptible to law breaking.  

Failure to recognise and properly support neurodiverse students with interventions from structured literacy programmes through to adjustments in teaching style and classroom layout can lead to disengagement and exclusion, or self-exclusion in the form of truancy. 

With youth crime so much in the spotlight, keeping students in school is critical. Where this is not the case, DFNZ’s focus is on youth justice, ensuring that neurodiverse individuals are not entrapped in a system that treats them unfairly as adults. Difficulty with the acquisition of basic skills like reading and spelling, slower cognitive processing speeds and comprehension all contribute to this.

Youth offending is the dark side of learning difference. For a young person with learning differences that render them ill-equipped to understand and deal with the justice system, DFNZ contends the default should be a family inclusive, restorative approach. 

In May 2016, DFNZ hosted a ground-breaking Neurodisabilities Forum to explore how neurodisabilities create vulnerability when they come in contact with the justice system, as evidenced by gross over-representation of neurodisabilities in NZ court and prison statistics. Outputs from the Forum included a comprehensive Neurodisabilities Report and a checklist on neurodisabilities tendencies. Click the Forum link above to find out more. 

In December 2016, the Government announced that the New Zealand Youth Court age would be raised to 18. This was a positive first step towards a more responsive court system for vulnerable youth. And a positive response to ongoing lobbying for an increase in the Youth Court age by a wide range of sector groups, including DFNZ. However, other key changes are necessary to ensure that vulnerable youth are recognised and appropriately responded to throughout the justice process. 

Further key changes 

For DFNZ, critical changes would include requiring lawyer to be present when vulnerable youth are questioned by police; making improvements in the information made available to the court on vulnerable youth, and a greater focus on equipping police to be able to recognise, accommodate and manage interactions with vulnerable youth. 

In terms of requiring a lawyer to be present, DFNZ believes it is critical young people get good support and advice. At present, youth can have a nominated support person with them when speaking with police, but support people of course are not necessarily well versed in the law. Combine that with a range of neurodiverse tendencies, including avoidance of eye contact and propensity to say yes to any question in order to end an uncomfortable situation, and it’s no surprise young people end up in court. A better way forward is to ensure young people get legal advice, which may help them manage their way out of trouble and into positive rehabilitation. 

Regarding information, DFNZ contends that information on neurodisabilities should be made transparent in the Youth Court by way of a mandatory educational psychologist’s report. Currently, reporting on this relies on the young person’s school (if they attend one) having identified these issues. In low decile schools particularly, this is often not the case. 

Making an educational psychologist’s report a compulsory requirement would alert all parties to the increased vulnerability of specific individuals when it comes to comprehending court process and discerning the consequences. 

In terms of police knowledge, front line police must be equipped with better knowledge as to how dyslexia, learning difference, communication disorders, and other neurodisablities present and how best to manage this. Simple changes that make a big difference would include keeping questions short and simple; addressing one issue at a time; and making sure not to ask multiple questions all at once. 

Vulnerability in the justice system

People with neurodisabilities are especially vulnerable when they come into contact with the justice system. In New Zealand, an estimated 65-70% of offenders that come before the Youth Court are not formally engaged within the education system. And results from a Ministry of Education screening tool trialed in 2008 on 197 prison inmates showed that 90% were not functionally literate and 80% were not functionally numerate. Looking at dyslexia alone, an estimated 10% of the New Zealand population is dyslexic, yet percentages climb as high as 90% in our prisons. 

Vulnerability in the justice system can be due to a number of factors. These can include different degrees of comprehension and social (dis)comfort due to low reading age, limited literacy skills, slower cognitive processing speeds and comprehension, impaired or heightened auditory and visual perception, poor short-term memory and variable concentration, reduced ability to understand procedures and follow instructions, inability to comprehend cause and effect and/or consequences. As well as behavioural propensities that can be mistakenly interpreted as hostility, acting out or evidence of guilt. See DFNZ’s neurodisabilities checklist for more on this.  

Importantly, neurodisabilities do not discriminate – they cross over socio-economic, ethnic, and cultural boundaries. It is estimated that up to 80% of young people in the Youth Court have at some point been subject to a Child, Youth & Family (CYF) notification. It is likely that, in many of these cases, family circumstances are underpinned or compounded by neurodisabilities. FASD, for example, can be intergenerational. This is also the case with a range of other neurodisabilities. 

It must be acknowledged that where young persons with neurodisabilities commit criminal offences, they have caused harm to victims and society and need to be held accountable, but this must be done in a manner that they understand, reflects their disability, and where appropriate support/rehabilitation/reintegration can be ensured.

Direct correlations between learning differences/neurodisabilities and youth offending have been well documented. In 2012, the Children’s Commissioner for England published a report which (“Nobody Made the Connection: The prevalence of neurodisability in young people who offend”, Nathan Hughes et al) showed 43-57% reported prevalence of dyslexia amongst young people in custody, 23-32% learning disabilities, 60-90% communication disorders. In 2014 in New Zealand, Auckland University’s Kate Peirse O’Byrne published the first comprehensive analysis of neurodisability and youth offending specific to New Zealand. In a special report published in the Youth Court journal, Issue 67, she noted that failing to take account of neurodisability in responding to offending was indefensible.

Former Children’s Commissioner Judge Andrew Becroft has long advocated for improvements in education and the youth justice system to support vulnerable youth. And in his prior role as Principal Youth Court Judge, he was a leading proponent of education as a protective factor against youth offending. International dyslexia expert Neil Mackay is also a proponent of education as a preventative. His ironic nine-step guide to ‘How to Create a Criminal’,outlines what the New Zealand education system does wrong for dyslexic students.

Quick Links

2016 Neurodisabilities Forum report and Neurodisability Tendencies Checklist available now.
Find out more…

The Children’s Commissioner of England and Wales report – ‘Nobody made the connection: The prevalence of neurodisability in young people who offend’
Click here to download

Dyslexia expert Neil Mackay’s
Ironic guide on how to create  
a criminal with ‘ mis-education’ 
Click here to download