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This article examines the New South Wales Joint Protocol to Reduce the Contact of Young People in Residential OOHC with the Criminal Justice System (2016 ) from the perspective of residential out-of-home-care providers, police, lawyers and departmental staff involved in the child welfare and criminal justice systems in New South Wales.

This article presents qualitative data from interviews with 46 welfare and justice professionals to examine the criminalisation of children who go missing within the Out‐Of‐Home‐Care (OOHC) residential environment. Participants had specific experience with children living in residential facilities, either through the direct provision of care services, the development of OOHC policy initiatives or through their role as law enforcement, legal or justice personnel. The research found that agency practices, which were designed to protect children, actually serve to conflate going missing with criminality, accelerating children's involvement in the justice system and ultimately endangering children's safety.

This article discusses the involvement in the New South Wales criminal justice system of a cohort of children in out-of-home care. The paper reports the findings of a four-year research project that investigated the relationship between the child welfare and justice systems as experienced by a cohort of children in the New South Wales Children’s Court criminal jurisdiction. Analysis of 160 case files identified that children in out-of-home care appeared before the Children’s Court on criminal charges at disproportionate rates compared to children who were not in out-of-home care. The out-of-home care cohort had a different and negative experience of the justice system, entering it at a significantly younger age and being more likely to experience custodial remand, than children who had not been in out-of-home care. While both cohorts shared many of the risk factors common to young offenders appearing before the Children’s Court, the out-of-home care cohort experienced significant additional disadvantage within the care environment (‘care-criminalisation’), such that living arrangements designed to protect them from harm instead created the environment for offending. The paper concludes by arguing that a paucity of research exists regarding the drivers and dynamics of care-criminalisation and that more research is needed to explore the criminogenic impacts of a childhood spent in out-of-home care.

Children in out-of-home care (those children removed from their homes and placed in state care by an order of the Children's Court) are vastly over-represented in the New South Wales juvenile justice system. The Report of the Special Commission of Inquiry into Child Protection Services in New South Wales (Wood 2008) found that 28 percent of males and 39 percent of females in detention had a history of out-of-home care (Wood 2008:556). The much anticipated Strategic Review of the New South Wales Juvenile Justice System, released in April 2010, noted these figures and stressed that addressing the risk factors of out-of-home care and its links to the juvenile justice system was a 'sound policy platform' (Noetic Solutions 2010:88). This is a sadly familiar refrain. While the terminology may have changed (e.g. the term 'state ward' is no longer used to refer to this group), little progress has been made to reduce the number of children in care appearing before NSW courts and filling NSW's juvenile detention centres. In 1992, the NSW Parliament's inquiry into juvenile justice heard evidence that female state wards were 'forty times more likely to be detained in custody than other girls' and were 'frequently unable to meet the bail conditions regarding an approved place of residence, by default remain(ing) in detention' (Standing Committee on Social Issues 1992:141). Appalled, the Committee noted that 'state wards are a particularly vulnerable group to involvement in the Juvenile Justice System' and urged the then Department of Community Services (DoCS)1 and the Office of Juvenile Justice 'to continue to monitor the numbers of state wards in the Juvenile Justice System with a view to developing strategies as to how best such young people might be diverted from contact with that system' (Standing Committee on Social Issues 1992:54).