By Carla McDonald-Heffernan and Carmen Robin-D’Cruz

Children with special educational needs and disabilities (SEND) are hugely over-represented at all points in the criminal justice system. Evidence suggests that 70–90% of children in the justice system have some form of SEND. Yet the lack of support for their communication needs may make these children’s experiences particularly difficult and the impact of educational disruptions as a result of justice system involvement can be particularly severe. Youth diversion offers many children a pathway out of the criminal justice system. In this informal non-statutory approach, children are offered the chance to partake in a community-based intervention rather than receiving a formal out-of-court disposal or prosecution. Evidence strongly suggests that youth diversion benefits children by reducing their likelihood of coming back into the justice system or getting further entrenched into it. Youth diversion might be particularly beneficial to children with SEND. However, given the range of communication barriers that children with SEND face in navigating the system, they may be less likely to receive diversion, particularly where communication difficulties are misconstrued as behavioural issues. Unequal access to diversion may create further disparity later on in the youth justice system. As part of the Centre for Justice Innovation’s ongoing interest in supporting effective use diversion, this report aims to understand how diversion is working for children with SEND. In order to research this report, we interviewed children with SEND who had received diversion as well as a range of professionals including youth justice service (YJS) practitioners, police officers and solicitors. We also conducted a survey of YJS practitioners. We are conscious that ‘SEND’ is a deficits-focused category that has been criticised for responsibilising children rather than highlighting the system that underserves them, as well as being an all-encompassing label that does not adequately account for differences within it. We have nevertheless chosen to frame our research around ‘SEND’ rather than using other overlapping categories such as ‘neurodivergent’ or ‘additional learning needs’ firstly because this project was in part driven by our response to the Government’s Green Paper, ‘SEND Review: Right support, Right place, Right time’. The fact that SEND is still the prevailing term used in the education sector, by the youth justice service and in joint decision-making panels for youth diversion specifically was also a key consideration. 

London: Centre for Justice Innovation. 2024, 39pg