"Care-criminalisation': the involvement of children in out of home care in the NSW criminal justice system

"Care-criminalisation': the involvement of children in out of home care in the NSW criminal justice system

Dr Kath McFarlane

This PHD thesis investigates the relationship between the child welfare and criminal justice systems (termed 'care-criminalisation') as experienced by a cohort of children in the NSW Children's Court criminal jurisdiction to identify: 1. the rates of appearance of children in out of home care (OOHC) before the NSW Children's Court on criminal charges; 2. whether this appearance rate is disproportionate; and if so, 3. what factors are leading to that over-representation. A sequential mixed methods methodology was adopted, comprising the collection of qualitative data and analysis followed by quantitative data analysis. The qualitative methods involved a literature review of leading academic papers in the area, an assessment of over 200 years of Royal Commissions, government reports, previously unpublished primary source documents and agency material, an examination of contemporary media commentary (such as newspaper articles, radio and television broadcasts) and analysis of 25 years of NSW Parliamentary Hansard. The quantitative methods assessment involved analysis of 180 NSW Children's Court files from 2009-2010, observational research of cases and analysis of the transcripts of individual Children's Court matters.


McFarlane, K., (2016) 'Care-criminalisation': the involvement of children in out of home care in the NSW criminal justice system (unpublished thesis) http://www.unsworks.unsw.edu.au/primolibrary/libweb/action/dlDisplay.do?vid=UNSWORKS&docId=unsworks38185

Publication/Completion Year:

Research Focus

  • Support for vulnerable and at-risk families
  • Understanding child abuse and neglect
  • Child protection services, systems and/or practice
  • Other child protection issues
  • Support for children who have been abused or neglected
  • Out of home care (including leaving care)
Major Findings:

This thesis identified that children in OOHC are over-represented in the criminal justice system (CJS) compared to their non-care peers. Further analysis revealed that the OOHC cohort had a different experience of CJS compared to other children. There was a statistically significant difference between the two cohorts across several key measures. Children in OOHC first came into contact with the CJS earlier and incurred their first charge at a younger age than children who had not been in care. Males in OOHC were particularly affected. Children in OOHC in this study were also more likely to be remanded for bail breaches and spent longer in custody than their non-care peers. There are complex and interconnected reasons for the care-crime nexus. Through an exploration of the processes and policies of the NSW child welfare system, this thesis has shown it is inexorably linked to the manufacturing of delinquency and children's involvement in the criminal justice system.


The criminalisation of children in out of home care has significant public policy and practice implications. This is particularly problematic given that the criminalisation arose as a direct result of poor practice, policy and philosophies of both ngo and statutory child protection and OOHC agencies and the intersection with criminal justice bodies. Solutions are urgently needed to overcome the institutional neglect of children in care.

Child Abuse Type(s):
  • Sexual
  • Physical
  • Emotional
  • Neglect
  • Exposure to family violence
  • Type not specified
  • Other
Child Abuse Type (Other):
  • Criminalisation
Type of Programme:
  • Statutory CP service
Type of Programme (Other):
  • NSW Children's Court
Issues relating to Indigenous Australians:
  • Yes

Further Citations

McFarlane, K. (2010) From Care to Custody: Young Women in Out-of-Home Care in the Criminal Justice System, Current Issues in Criminal Justice Vol 22 No 2, 345-353 Sydney NSW

McFarlane, K. (2012) From Care to Custody: Young Women in Out Of Home Care in the Criminal Justice System, Australian Clearinghouse for Youth Studies, www.acys.info/

McFarlane, K. (2008) 'From Care to Crime - Children in State Care and the development of criminality' in Cunneen C. and Salter M. (eds) Proceedings of the 2nd Australian & New Zealand Critical Criminology Conference, 19-20 June 2008, Sydney, The Crime and Justice Research Network and the Australian and New Zealand Critical Criminology Network, Sydney NSW

(ABC) Australian Broadcasting Commission. Lateline 'Child Protection is failing children', 30 May 2012. Sydney Australia

Commencement Year:
Project Completed?:
Completion Year:


Information obtained from:
Added to Register: 30 June 2016
Last updated: 30 November 2016

Publication meta

Project location(s):
  • New South Wales
Project Type:
Research only
Participants/Data Sample:
  • Child protection systems
  • Legal case files
Sample Size:
Large (100+ participants)
Mixed methods

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