Punishing difference: why are neurodivergent children disproportionately punished by our education and youth justice systems?

It should be uncontroversial to begin by stating that no one should be isolated, stigmatised, excluded, or even criminalised, for being different. However, while under researched, it is widely accepted that neurodivergent children are disproportionately excluded from schools and over-represented in the youth justice system.  

The statistics

Some disturbing studies suggest:

• 80% of children who have been sentenced or cautioned for an offence were recorded as having Special Educational Needs[1];
• Of young people in custody, it is estimated 12% have ADHD, 15% are autistic and 60-90% have some form of speech, language and communication difficulty[2];
• Children with Autism are three times more likely to suspended from school[3]; and
• Children with ADHD are a hundred times more likely to be excluded from school[4].

There may be a number of cases but the inescapable conclusions is that there is something inherent within our education and youth justice systems that punishes difference.

Understanding neurodiversity is complex

Most people will have an awareness of conditions which are considered to be part of the neurodiversity umbrella, such as ADHD, autism, dyslexia, and Tourette’s syndrome. However, a very small proportion will have a sufficient understanding of how these conditions can actually present themselves outside of well publicised stereotypes. This is made more complex by the fact that it is common for individuals to have more than one neurodevelopmental condition. The co-existence of another neurodevelopmental condition will influence how the other neurodevelopmental condition may present itself.

Ultimately, the experiences and traits of neurodivergent individuals is highly variable – not all individuals with autism are bad communicators, not all individuals with ADHD spend hours hyper focusing, and not all people with OCD are obsessively clean.

A genuine and effective understanding of neurodiversity means appreciating the nuances of each specific neurodevelopmental condition and how these could present and interact with each other.

It is important that the complexity of understanding neurodiversity is not over-simplified because it is a lack of understanding which has likely led to the over-criminalisation and disproportionate exclusion of neurodivergent children.

Why is it important to understand neurodiversity?

No child behaves perfectly all the time. In addition to this, neurodivergent children can (but do not always) behave in ways that may be disruptive, problematic or challenging. The failing that leads to the statistics above is that this behaviour is interpreted as an innate reflection of their character rather than being understood as arising as a result of their needs being inadequately met and the correct behavioural interventions not being applied.

There can be a pervasive loneliness in being neurodivergent because neurodivergent adults and children are expected to operate in a neurotypical world and can tell, to varying extents, that their reactions, and certain characteristics that they have, are not “typical”.  They are acutely aware of being different. This can be incredibly isolating, and indeed, the majority of neurodivergent children report facing bullying at school[5].  If it is then re-enforced by authority figures that natural reactions are “wrong”, “bad” or “attention seeking”, it is perhaps understandable why this leads to emotional outbursts.

By way of example, professionals consulted in the National Autistic Society’s Youth Justice (NAS) Report identified the following as possible risk factors for autistic young people’s involvement in the criminal justice system:

• Being easily led by others;
• Difficulties with socialisation; and
• Difficulties in understanding personal boundaries.

These characteristics do not mean that autistic children are inherently “difficult” nor do they mean that somehow, at an intrinsic level, autistic children are more likely to commit a crime. Instead, what it means is that autistic children need additional support and safeguarding because they may be vulnerable to misunderstanding certain situations as well as themselves being misunderstood, isolated or exploited.

The NAS’ report included a number of cases studies demonstrating how a lack of support at school ultimately led to autistic students engaging in offending behaviour including the following example:

“Our son was being bullied at his academy and was physically beaten up and the school did very little. He finally broke down one day and exploded and was expelled. He damaged property and the school tried to charge him”.   

At present, teachers and the police are not equipped to understand how a child’s behaviour may have been impacted by their neurodiversity. Outside of the general expectations set out in the Teachers’ Standards regarding the needs of all pupils, there is no specific training for teachers regarding supporting neurodivergent students. Similarly, police are not required to undertake any specialist training nor is there any standard guidance or policies which refer to neurodiversity. To put it simply, it is unrealistic to expect people to begin to understand neurodiversity when frontline workers are not even being trained on how to identify it.

The result is neurodivergent children are excluded and criminalised at a far higher rate than their neurotypical peers. This means that the social isolation which is already being experienced by some neurodivergent children is crystallised by exclusion from school with a poor record and early contact with the criminal justice system. These are all significant factors for future offending.

How can we help?

As lawyers, we view our role as helping to bridge this gap in understanding between key decision makers and neurodivergent children.

Our education lawyers can assist with allegations made at school and with a view to avoiding any actions being taken which would negatively impact a child’s education. In the event that the relationship between the school, child and parent has irreparably broken down, we can also provide support throughout the withdrawal process including advising on data protection in respect of references and the contents of your child’s safeguarding file..

Similarly, our criminal team has a specialist youth practice which is experienced in ensuring that a child’s neurodiversity is not unfairly characterised as criminality. This includes making representations aimed at avoiding arrest and conviction that could adversely affect a child’s future prospects and reputation.