Principles and guidelines for diversion and out of court resolutions for children

This guidance has been produced by MSG Consultancy for the Welsh Government in collaboration with:

• Policing in Wales
• Youth Justice Board
• YOT Managers Cymru
• Gwent Office of the Police and Crime and Commissioner 
• South Wales Office of the Police and Crime Commissioner

MSG Consultancy would like to thank all the individuals and agencies who contributed to the production of this document, the pre-court diversion workstream leads for the Youth Justice Blueprint for Wales, Eleri Thomas, Deputy Police and Crime Commissioner for Gwent and Sian Rees Director of Justice, South Wales Police and Crime Commissioner’s Office and to the task and finish group set up to monitor the progress of this work.

When the Principles and Guidelines were being developed, we were aware that some of the documents cited here were under review and were likely to be updated and re-issued. To the best of our knowledge, we used up to date information, current guidance and indicated where changes were likely to occur. Some changes have since occurred, notably the change in terminology from Out of Disposals to Out of Court Resolutions. The Principles and Guidelines have been altered to reflect this. The comments about the Bureau related to HM Inspectorate of Probation Inspections which were carried out between December 2021 and 2022. The out of court landscape in Wales has subsequently changed, but the lessons learned from those inspections are still valuable.

These Principles and Guidelines have been produced for the Pre-court Diversion workstream of the Youth Justice Blueprint for Wales. They were compiled from a review of documents relating to out of court disposals, now known as Out of Court Resolutions (OoCRs) and diversionary activity in England and Wales, 4 workshops with Youth Justice Services (YJS), the police, victims’ services, children and other stakeholders and discussions with agencies and individuals including the Association of Directors of Children’s Services in Wales , YOT Managers Cymru and police representatives based in YJSs.

The Principles and Guidelines are intended to inform practice by addressing some of the issues which have been raised as important as part of the information gathering for the project. The intention is not to replicate the Youth Justice Board’s (YJB) case management guidance which provides more information about how to work with children who have received OoCRs (addressing assessment and interventions), but to explore what Principles and Guidelines for Wales should contain to ensure that children across Wales are treated equitably irrespective of which police force area or YJS is dealing with them.

Throughout the document children are referred to as individuals who have not yet reached the age of 18 years of age, in accordance with the United Nations Convention on the Rights of the Child (UNCRC).

The context in Wales

The Crime and Disorder Act 1998, defines the aim of the youth justice system as being to prevent offending, however the Social Services and Well-being (Wales) Act 2014, also places a duty on local authorities to provide preventative services to encourage children not to commit offences and to reduce the need for criminal proceedings against children (Section 15(2).

The Well-being of Future Generations (Wales) Act 2015 sets out requirements to ensure local services are provided to prevent children from offending and to help them to fulfil their potential, irrespective of their situation, circumstances and socio-economic background. Diversionary practice which seeks to keep children out of the justice system supports the long-term aim of the preventing future criminality and the transmission of intergenerational offending.

The Criminal Justice Board for Wales brings together a range of criminal justice partners to work together to reduce crime and improve the outcomes and experiences of those entering the criminal justice system. Its focused workstreams have included early intervention and prevention, race equality, victims and witnesses and people who offend. The Welsh Government’s anti-racist plan sets out action to reduce racism in every aspect of life. Its goals are to work with the police and other criminal justice partners to create an anti-racist criminal justice system in Wales, to tackle systemic racism and reduce discrimination and diverse outcomes for people from ethnic minorities. The Criminal Justice Anti-Racism Plan for Wales sets out a series of actions to end the over representation of ethnic minority people who have committed a crime. It specifically refers to monitoring engagement with prevention and early intervention activity.

The vulnerabilities of children in certain circumstances are also relevant, for example, where they are victims of various forms of exploitation and harmful behaviour. Whilst offending behaviour has brought them to the attention of the police, there may be significant underlying issues which need exploration which could have a bearing on outcomes. The Violence Against Women, Domestic Abuse and Sexual Violence (Wales) Act 2015 is intended to ensure there is a focus on the prevention of abuse and violence against women and girls, the protection of victims and support for those affected. The Wales Safeguarding Procedures recognise that children may be at risk of various harms irrespective of the circumstances they find themselves in. The All Wales Protocol: reducing the criminalisation of care experienced children and young adults sets out best practice for avoiding and reducing the criminalisation of care experienced children. There is increasing awareness of the short- and long-term effect of Adverse Childhood Experiences. Being subjected to childhood trauma and stress can have a negative influence on physical and mental health and be associated with health-harming behaviours, and criminal justice involvement. The Wales Trauma Framework explains how individuals and organisations can identify and support people who have experienced trauma.

Child First and Diversion

The UNCRC sets out why children need consideration because of the special status accorded to them because of their age. The Convention has several overarching articles which apply to all children.

These include actions should always be in their best interests (Article 3), be non-discriminatory (Article 2), support them to thrive and develop (Article 6) and enable children to participate in decisions which directly affect them (Article 12), including when involved with the criminal justice system. Further, Article 40 states there should be measures for dealing with children who break the law without resorting to judicial proceedings.

Child First is increasingly being seen as the approach to adopt when dealing with children who encounter justice services. The YJB has developed an operational definition of Child First and identified 4 key tenets:

• See children as children.
• Develop pro-social identity for positive child outcomes.
• Collaboration with children.
• Promote diversion (subsequently changed to Diverting from stigma).

Promote Diversion aims to promote a childhood removed from the justice system, using pre-emptive prevention, diversion and minimal intervention. All work minimises criminogenic stigma from contact with the system. Child First approaches to diversion should be associated with:

1. Diverting children from formal youth justice interventions at the earliest opportunity.
2. Setting disposals at the lowest appropriate level.
3. Having flexible and discretionary processes which are driven by the circumstances of the offence and the best interests of the child.
4. Enabling access to mainstream and preventative services and support.
5. Not negatively labelling children or exposing them to stigmatising processes which adversely affect life chances.
6. Affording all children the same opportunities irrespective of race, ethnicity, gender and identity.

What is important to children?

Child Centred Policing Principles have been developed using the four pillars of procedural justice and the views of children based on the UNCRC and identify Trustworthiness, Fairness, Respect and Voice as being important to them. The principles recognise that children can have a difficult relationship with the police and when in crisis (including as a result of offending) should have confidence in them and the processes they will be subject to.

The Centre for Justice Innovation asked children about their experiences of diversionary processes and identified several significant themes. These included children being able to understand the criminal justice process they were involved in, what type of disposal they had received and how long they were expected to work with the YJS. Children could be overwhelmed by information provided by multiple professionals. Other areas of concern were not understanding whether they would receive a criminal record and the implications of doing so.

From our engagement with children they advised that when they have had interaction with the police, they have not always been advised they may be contacted by the YJS to establish if they require any further assistance (professionals also raised this issue). There were instances when children and their families were surprised to be contacted by the YJS, after their involvement with the police, as they thought it was the end of the matter and did not realise there might be further requirements.

Defining diversion

One of the fundamental approaches of diversion is that where appropriate children are diverted away from the criminal justice system and receive support and assistance to lead crime free lives. OoCRs are intended to be timely and proportionate responses to low-level and less serious offending which does not require prosecution in court. Diversion avoids the possible negative effects of formal justice processes, labelling and stigma and the impact on children’s life chances.

While the police and the YJS are the lead agencies involved in diversion processes, other agencies may be involved in providing information to inform decision-making on appropriate outcomes for the child and in providing support.

Partnership documents (protocols with the police and other agencies, practice guidance etc) should contain the same definition of diversion, to assist all agencies involved to understand the objectives of diversionary activity and their role and function within it. This was also highlighted by the YJB’s prevention and diversion project which identified the benefit of having a shared vision and understanding. The YJB has produced a definition that could form the basis of discussion with partners. The Centre for Justice Innovation’s Toolkit for Practitioners includes a section on making the case for youth diversion which is also helpful for communicating some of the key messages.

It would be useful for the definition to be accompanied by principles developed and agreed with partners, which reflect the intentions of diversionary work. These principles have been compiled from the information gathered by this project:

1. Proportionate: All partners are committed to diverting children from involvement in the criminal justice system and for dealing with them at the lowest level (including No Further Action) appropriate to the circumstances of the offence, the child and the victim.
2. Inclusive: Children are linked to local authority and other preventative and mainstream services, taking into account their specific cultural, health or other protected characteristic needs, which can support them to lead, happy, healthy and safe lives,
3. Timely: Processes are timely in terms of notification, decision-making and delivery of OoCRs. Efforts are made to minimise delays for children.
4. Equality: Attention is given to children’s needs (including whether they are Welsh language speakers), diversity and disproportionality. Children are treated fairly, not disadvantaged for any reason or assumption and encouraged to develop their potential and interests.
5. Participation: Children and their families are engaged to understand their perspectives, ensure they comprehend what is happening, foster engagement and support desistance. This includes the use of translation services where required.
6. Protection: The vulnerability of children and victims is recognised and where safeguards are needed to protect the child or others from harm they are put in place and are monitored.
7. Relationships: Positive relations are built with children which encourage and enable them to engage with professional assistance, build trust and feel cared for and supported.
8. Communication: Children are supported to understand what their engagement or non- engagement in diversionary activity means and depending on outcome whether they will obtain a criminal record.

The principles should be accompanied by clearly defined processes which explain:

• the eligibility criteria for each type of resolution and the decision-making process which applies
• relevant roles in decision-making and delivering services
• how discretion is applied and where the rationale for the decision is recorded and justified when deviating from the National Police Chief’s Council’s Child Gravity Matrix which is used to determine whether children should be considered for out of court resolutions. Individual circumstances will be fully assessed to enable effective decision-making, including for offences that might not normally be expected to attract an OoCR if based on the Gravity Matrix score.
• the process for referring an OoCR back to the police if not considered appropriate (with a usual presumption of diversion than not)
• the process for cases that could be bailed by courts for consideration of an OoCR
• specifying the arrangements for children’s safety and the safety of others including victims
• processes and timescales for reviewing cases for closure
• a clear, formal and effective escalation process between the YJS and police for cases on which agreement cannot be reached

The sharing of information between the police, Crown Prosecution Service, YJSs and courts is also vital particularly in the early stages of determining the direction of the case (diversion or prosecution). This is to enable the right decisions to be made at the right time, to avoid unnecessary delays to processes and to ensure the child is dealt with in the most appropriate way relevant to their circumstances, the offence committed, previous incidents and consideration of the victim’s views.

Adoption of the same terminology across Wales for out of court resolutions

One of the key issues to come out of this project (and previous studies of use of OoCRs) is disparity in the use of terminology for OoCRs, notably Community Resolutions which have different names and mean different things in different areas. The National Police Chiefs’ Councils’ (NPCC) guidance on Community Resolutions (NPCC 2022) states that a Community Resolution is used to describe the lowest resolution type available to policing. It may be used with children and young people where; the case is capable of proof, the child/young person has been identified as the offender and there is an acceptance of responsibility or admission of guilt. The guidelines are intended to bring greater clarity to the use of Community Resolutions. Restorative Justice (a term also used) is the methodology used to deliver the outcome, but not the outcome itself. The NPCC guidance (2022) suggests that Restorative Justice is used alongside a resolution, rather than used alone.

This variance impacts on notification processes, what is reported, whether or not children are assessed for additional support, how outcomes are monitored and what disparity exists where and for what reasons. While it might be challenging to change local practice, there would be significant benefit in adopting a common approach across Wales and for ensuring that the NPCC guidance referred to above is followed. An appropriate forum for this discussion should be identified so the potential for change can be fully explored.

Of note, is that YJB Key Performance Indicators which were introduced for YJSs in April 2023, require the recording of OoCRs in instances where the YJS has undertaken an assessment and/or delivered interventions either directly or indirectly. OoCRs which are monitored include Community Resolutions with a YJS intervention, so clarity about what this relates to is essential for accurate reporting.

The Youth Justice Service should be notified by the Police when a Community Resolution has been issued

The quality of communication between the police and YJS is a foundation of diversionary work. There are varying notification processes across Wales from the police to the YJS when a child has come to the attention of the police and has received a Community Resolution. There should be agreed processes about what is notified by the police, when and in what timescales. The NPCC guidance on Community Resolutions states notification should be within 24 hours of the Community Resolution being given and when a second or subsequent one is under consideration, there should be referral to a YJS at the earliest opportunity to enable joint decision-making. It is accepted there is a need for expediency in decision-making and for dealing with matters quickly from the child’s perspective, but there may be instances where the YJS should be involved before a first Community Resolution is given and not just the second or subsequent ones. Additionally, YJSs should also have processes in place for checking what is happening to children in their area and who is coming to the attention of the police for what reason.

YJSs need to have comprehensive information to understand the child’s circumstances and history including what interactions they have had with the police and what is contributing to repeated involvement to help to determine the most appropriate outcome and whether support and intervention is required. Without this information YJSs can-not make informed judgements.

Information sharing between the police and YJS tends to start with OoCRs, but to get a complete picture of what is happening to children in each area and their interactions with the police, consideration should be given to how data on Stop and Search, No Further Action and children Released Under Investigation can be shared and monitored with YJSs.

Further considerations are whether the number of children Released Under Investigation should also be monitored by Scrutiny Panels, as well as referral timescales from the police to the YJS to better understand local practices and their impact on children. This was because it was reported that it takes a long time to refer some children and engagement in diversionary processes becomes less meaningful as time goes on.

Police Notifications of Concern

Public Protection Notices are notifications from the police to the local authority when they have concerns about a child. This includes children who are at risk of or on the verge of offending as well as notifications for safeguarding reasons. However, there is wide variation in how these are triggered. Examples provided included issuing of Yellow Cards (for anti-social behaviour in North Wales) and in other areas when a child has been held in police custody, although it was also noted that children subject to voluntary attendance interviews may not be considered in the same way. Notifications can be made through a Multi-Agency Referral Form (for Early Help and social care services) or CID16 forms (a combined assessment and referral form completed if the police have concern about a child). However, there does not appear to be a consistent approach for what generates the notification (safeguarding aside) when early assistance could prevent offending and how the notification gets dealt with by the local authority. Clarification and a more uniform approach are required.

Links to other preventative and diversionary activity

The route through which children come to the attention of the YJS will depend on what has happened and how they are responded to, whether because of anti-social behaviour, referral to preventative services or because of low-level offending. All children should have the same opportunities to amend their behaviour and be able to access the full range of services provided by the YJS and/or local authority provision and be supported to access other mainstream services in a supportive and non-stigmatising way. Whilst protocols between the YJS and the police concentrate on the process of out of court decision-making, strategies should reflect where diversion sits in relation to other activity undertaken to support children and protect them and others from harm.

Promoting awareness that offending can be a by-product of adverse experiences may help partners to develop their understanding of why diversion is important and necessary. Actions which support this include:

• Responding to anti-social behaviour and community safety with a focus on preventing and prioritising non-punitive measures and preventative approaches. This involves ensuring there is no conflict between the use of OoCRs and anti-social behaviour measures, which may be unduly detrimental to the child by involving them in both processes and escalating their criminality.
• The role of youth work and youth engagement in supporting children to take part in positive activity in their community.
• Understanding the role of YJS prevention services and their relationship to diversionary activity.
• Diverting children into supportive services which take them away from the criminal justice system.
• Identification of vulnerabilities, considering emotional and mental health, cognitive and developmental maturity, the context of vulnerability, and current and historical safeguarding concerns to ensure that children’s needs are properly recognised, and the appropriate course of action is taken.
• Having good links between police officers in schools and their counterparts in YJSs, so there is a consistent approach to dealing with school-related issues. With the cessation of the All Wales Police School Liaison Core Programme in March 2024, South Wales Police, in consultation with its stakeholders, launched a new Youth Engagement Programme to sustain the partnership work between police and its partners in the school environment. Youth Engagement Officers work in partnership to safeguard children and young people through early interventions to tackle anti-social behaviour, substance misuse, prevent violence, exploitation and on and offline safety.
• Identifying children at risk of involvement in activity relating to serious youth violence.
• Children in the care system are over-represented in the youth justice system. The non- criminalisation of care experienced children is important in ensuring children do not receive a sanction for an incident which had it occurred in a domestic setting would not be considered to be an offence. Diversionary processes should ensure there are proportionate responses to the actions and behaviour of care experienced children.
• Understanding the impact of Adverse Childhood Experiences and trauma which can impact on behaviour and lead to involvement in the criminal justice system.
• Recognising the vulnerability of children and whether there are safeguarding concerns. Whilst they may have come to attention because of offending, they may also be victims of various forms of exploitation, be engaged in risky behaviour and their status as a ‘victim’ may be a greater concern than their offending.
• Recognising that children are capable of harmful acts to others and while the disposal (OoCR) they receive may be low level, there may be concerns about harm to others which needs to be kept under review. YJS have the expertise to do this and will refer children to appropriate meetings/panels which assess and monitor risks. This should offer a level of assurance that their situation and circumstances will be carefully managed and kept under review.
• Children’s rights are important. A Child First approach is designed to remove children from unnecessary involvement with the criminal justice system; however victims also have rights and the Victims Charter exists to support those rights and the need for balance in decision- making processes.

Reviewing the Bureau decision-making process

Every locality should have a process for making decisions about OoCR cases. In Wales a decision- making panel, called the Bureau, has been used in most areas comprising a minimum of the police, YJS and in some instances a community volunteer. HM Inspectorate of Probation (HMIP) inspections in Wales criticised the Bureau process for being too criminal justice focused and mirroring approaches associated with Referral Orders. The Bureau was initially introduced in 2008 and subsequently independently evaluated by Swansea University. Several of its features were positively commented on in the Criminal Justice Joint Inspection of Out of court disposal work in youth offending teams in 2018. However, a YJB survey of youth justice services in 2022 found that Bureau practice varied across Wales and did not always reflect the original model. In view of HMIP feedback and the variable operation of the Bureau, every YJS which has a Bureau should review its operation. Where YJSs had plans to review the Bureau and associated processes, considerations included:

• Making the process more child friendly and trauma informed.
• Working more preventatively in a multi-agency way.
• Establishing if the child can be triaged at an earlier stage and only go to the Bureau decision-making panel when necessary.

However, one of the challenges in in determining which OoCR a child should receive, is that different guidance offers different opinions on whether it should be a police decision alone or jointly with the YJS and at what stage this should occur. For example, evidence from HMIP reports published on YJS inspections suggests it should be a joint decision and the YJB Standards for Children in the Youth Justice System also indicates there should be a ‘means of joint decision-making’ for OoCRs. However, operational guidance for the police locates some actions firmly with the police. This contributes to a lack of consistency within and across police force areas and the different ways in which YJSs interact with the police. It is a key area where clarity is required.

What should the process be for children who are eligible for an out of court resolution?

There needs to be a process for determining what happens when a child has received a Community Resolution or what happens when a child is eligible for an OoCR but has not yet received one and whether a decision-making panel is used or a process of direct case allocation operates.

In one YJS, there is a single point of access for all children, which determines which cases go where, for example to prevention services, for consideration of an OoCR etc. This looks at what the right outcome is for the child and which service should deliver the support and intervention. In other areas there appear to be 2 main approaches:

• The child receives a Community Resolution, which the YJS is notified of, an assessment is made by the YJS (in most cases) for any further involvement which if required is then directly undertaken without a panel process.
• The child is referred to the YJS by the police, for consideration of a Community Resolution. The child is then discussed at a decision-making panel, which they may or may not attend.

There is some variation in the way that Community Resolutions are closed for recording purposes. In some instances, the Community Resolution is closed at the start of YJS involvement, in other instances at the end when the (voluntary) intervention has been completed and complied with. NPCC guidance indicates it is recorded as No Further Action (Outcome 8) once closed (whether complied with or not or not). YJS advised there is not a standard method of reporting the Community Resolution has been completed successfully or not.

What is the purpose of the decision-making panel?

The YJB’s Standards for Children in the Youth Justice System states in Standard 1, Out of Court Disposals there should be locally agreed practice for OoCRs and a suitable means of joint decision- making. The Bureau was the decision-making process across most of Wales for some time, although as indicated previously it operated in a variety of different ways.

One of the important issues to come out of inspection findings was whether or not there should be a joint decision-making panel to consider children who are eligible for OoCRs to determine which disposal they should receive, what it should look like, who should be involved, what type of OoCRs it should look at and whether children and their families attend or not.

The options are whether the decision-making panel:

• Makes all out of court decisions (including No Further Action).
• Looks at some but not others e.g. Youth Cautions (YC) and Youth Conditional Cautions (YCC) and second and subsequent Community Resolutions referred for a joint decision or whether Community Resolutions in some instances are allocated directly to the YJS for an assessment/intervention.
• Only discusses YCs and YCCs and what support will be provided to the child on a voluntary or compulsory basis by the YJS.

Secondly, whether the decision-making is a one or two stage process. For example, the first stage being a pre-meeting to the decision-making panel where information is shared among professionals to ensure the decision-makers have access to all available information and options, including how risks relating to the safety and well-being of the child and others will be managed and where the victim is situated in the process. Also relevant is whether the child admits guilt or accepts responsibility or not; they might not be eligible for a Community Resolution, but No Further Action (Outcome 22) could be considered. This includes whether it is a multi-agency meeting with input from professionals who know the child and their family providing information, an advisory input and identifying activity to support the disposal (including No Further Action) or whether any other course of action should be taken e.g. whether a referral to other preventative services would be more appropriate. If it is a two-stage process, whether the first stage is followed by the police and YJS making the final decision without any other services or agencies present.

Consideration should also be given to whether the case manager (or a YJS representative on behalf of the case manager) is present to discuss the child as they will have the most detailed knowledge.

If decision-making meetings are to have more of a shared emphasis a further consideration is whether they are jointly chaired between the police and YJS. There also needs to be clarity about the balance of decision-making and who it rests with, the police alone, jointly with the YJS and what the escalation process is if there is disagreement, to ensure collaboration, balanced decision-making and that children are not disadvantaged in the outcomes they receive. There is some tension between the various guidance which suggests it is the police alone which make the ultimate decision and in other instances with the YJS (as indicated above the YJB refer to joint processes). This needs to be clarified in protocols and practice guidance, as do escalation processes. HMIP identifies there needs to be healthy challenge, however if the balance of decision-making is weighted to one organisation over another it is difficult to see how escalation processes can be effective.

YJS practice varies in terms of what assessment tools are used and what information is produced for the decision-making panel. The YJB has developed a Prevention and Assessment Diversion Tool, to be used for OoCR cases, which was introduced in April 2024. A further consideration is whether and how the decision-making panel is advised of the conclusion of any interventions (voluntary and compulsory for a YCC) and whether it has any role in automatically being part of the review process for those cases which are still open at 12 weeks.

Who else is involved in the decision-making and what is their role?

One of the criticisms of the Bureau was about its membership and what role the membership plays in the process. Not all Bureau decision-making panels have a community volunteer. Where they do, their role is broadly understood to represent the community and to talk to the child about the impact of the harm they have caused on the individual affected and the wider community.

The role of the community volunteer as a member of the Bureau decision-making panel has been questioned by HMIP, whereas in the 2018 Joint Criminal Justice Inspection^. it was regarded as ‘sensible and positive to apply an independent voice to the decision-making, thereby supporting public oversight and transparency of the process’ (2018: 33). The difference of opinion suggests the role and function of the community volunteer and what value they add should be reviewed.

There is also the matter of what local processes look like and how they are delivered, in particular the input of other agencies to inform knowledge of the child, their family and circumstances and to offer support and interventions through non-criminal justice diversionary and preventative work and where this sits in the overall processes. For example, this could be in case allocation decisions (where a range of services could be considered) or in preparation for decision-making panels where the advisory input of other services within the YJS could be provided e.g. Health and Education. The range of agencies providing input has been expanded in some areas to include Health, Education, Early Help, the input of speech, language and communication therapists, substance misuse workers, restorative justice workers and Victim Liaison Officers to provide the views of the victim. In one area the mental health worker, is also a trauma champion and brings that wider perspective and understanding of the Child’s behaviour.

One of the observations of HMIP was there should be more of a balance in diversion processes between criminal justice agencies and those which focus on safeguarding and welfare. This includes Children’s Services and whether a representative should attend all decision-making meetings (as a standing member) to ensure that access to wider local authority services is always considered or whether they should attend for specific cases e.g. if the child is care experienced or known to Children’s Service for other reasons. Information from Children’s Services is gathered and fed into decision-making processes, however it is not always clear whether Children’s Services are consulted about access to local authority preventative services which could assist the child and their family (and determine whether No Further Action or a Community Resolution is more appropriate). The feasibility of Children’s Services becoming more involved in diversion activity and in what capacity should be explored.

Should children (and their families) attend decision-making panels?

One of the issues raised by HMIP is whether children should attend decision-making panels which discuss what outcome they should receive. The reason for this was because the way Bureaus operated was too similar to criminal justice processes and there should be a greater distinction between systems which operate for children who are not part of the criminal justice system and those they must be a part of.

The YJB’s research into the operation of the Bureau found that not all decision-making panels required children to attend (particularly in North Wales). However, the UNCRC is clear that children should be able to participate in decisions which affect them (Article 12) and therefore be aware of who is making those decisions.

However, the ‘balance of power’, the attitude of the professionals in the decision-making meeting,

the approach they take e.g. ‘adversarial’ versus strengths based and positive are likely to be some of the factors which have raised concerns about the child’s attendance. Further children’s ability to interact and communicate may positively or negatively influence outcomes for them. The child is not a decision-maker in the process, so their ability to influence outcomes is potentially negligible. This suggests that helping them to understand consequences and impact does not need to be undertaken in the decision-making process but in the assessment and subsequent (voluntary) intervention delivery. A further issue is whether calling the child to account for their actions in a meeting with various professionals (including a community volunteer) is a proportionate response to their offending, when OoCR decision making processes are not intended to be formal criminal justice processes and evidence suggests the more processing a child is subject to the greater the likelihood they will continue to offend.

As there are different opinions on whether children and their families should attend, options to consider are:

• Whether the decision-making process is purely a professionals meeting.
• How children can be helped to understand what decision-making is happening and how it affects them.
• How the voice of the child is heard and considered in the decision-making process, whether they need to be physically present, or their views are provided through other means e.g. from their case manager or through the role of advocacy.
• If the child is to attend (whether there is a presumption in this respect), making the process less adversarial, with the child being supported by their case manager to help them to understand and participate in the process.
• Whether to provide the child with the option of attending or not, exploring what suits them on a case-by-case basis and giving them the opportunity to meet the people who are making decisions about them.
• If the child (and their parents/carers) attend ensure it is a positive, inclusive experience they can benefit from.
• If the child (and parents/carers) attend obtain feedback about their experiences and use it to ensure the process works well for them.
• Take a flexible approach to how panels operate in terms of the venue, geographical location and method (face-to-face or virtually) to enable attendance and possibly reduce the power difference.

How many out of court resolutions a child can have?

One of the principles of diversion is there should be flexibility and discretion when determining the outcome for the child. One of the difficult areas to address is the number of ‘chances’ the child should be given in terms of the number of OoCR they receive. The Centre for Justice Innovation’s Toolkit for Practitioners addresses this by acknowledging the evidence is not clear about how many chances to give an individual. The Centre suggests identifying where comfort levels sit with relevant partners, that the number of chances should not be too restrictive and the agreed approach should be reflected in policy and guidance. Discussions with YJSs indicate the number of chances given is something which is generally considered on a case-by-case basis within the context of the child’s previous and current behaviour and circumstances. This may be the most pragmatic response as there will be situations where there is a need to explain to the victim or other stakeholders why the child has been given additional chances. Internal quality assurance processes (within the YJS and by the Management Board) and use of Scrutiny Panels should monitor this element of practice.

Victims

Whilst this document has largely focused on the child in diversionary processes, victims should also be considered. The Code of Practice for Victims sets out the services and minimum standards that must be provided to victims of crime. When children commit offences the views of victims should be taken into account when determining the outcome. This involves understanding the impact on them, what they would like to see happen and exploring opportunities for direct or indirect restorative justice. Victims have a right to be kept informed about the progress of the case which includes the decision-making around it, for example whether the child is eligible for an OoCR and why that decision is being taken. Challenges include helping the victim to understand criminal justice processes and the perception they might have that justice is not being carried out if the case does not proceed to court and then not being satisfied by their experience of the system.

Research has highlighted that the process of administering the OoCR (and the communication this involves) may be as important as the OoCR itself, with good engagement and keeping victims informed throughout contributing to a more satisfactory experience.

Child Gravity Matrix

The 2013 ACPO Youth Gravity Matrix was replaced by the Child Gravity Matrix in 2025. The Matrix is used as a guide in determining which OoCR the child might be eligible for depending on the seriousness of the offence and the aggravating and mitigating circumstances around it. However, using this alone is not a Child First approach as the gravity indicator does not provide the contextual information to determine the most appropriate outcome. The Matrix is intended as a guide and not a definite position without understanding the full circumstances of the child, the context of the offence, the interests of the victim and community and enabling the principle of discretion to apply where appropriate.

One of the most challenging areas is in relation to knives and offensive weapons. The Child Gravity Matrix indicates that diversion can be a possibility depending on age and any aggravating factors. It also states that the reasons for departing from national guidance should be fully recorded by the decision maker. The risk classification is designed to assist decision-making, should not be considered as a definitive guide and be balanced against other considerations. This suggests that understanding of the status of the guidance assists in how it is used and applied.

The other area where there can be differences of opinion is whether traffic-related offences can be considered for OoCRs, as there is no mechanism for issuing endorsements. However, the Child Gravity Matrix indicates that diversion can be considered, following an assessment of all the circumstances of each individual case. The three Gwent YJSs have a local agreement whereby a Community Resolution can be issued to a child for a motoring offence (if it is suitable for diversion) provided they agree to and complete a motoring focused educational programme, called the Road to Learning. This could be adopted elsewhere.

Maximising opportunities for diversion (and use of Outcome 22)

There is a hierarchy of OoCRs which can apply depending on the circumstance and seriousness of the offence and previous history etc. These are:

• Community Resolutions which are ‘street disposals’ (with no expectation of YJS involvement other than notification to the YJS).
• A second or subsequent Community Resolution which the YJS should always be notified about which result in:
  • An assessment, but no intervention is identified as required.
  • An assessment where intervention is offered.
• Youth Caution with a voluntary intervention.
• Youth Conditional Caution with compulsory intervention.

The police also have the option of deferring prosecution and utilising Outcome 22. This is to provide the child with the opportunity to engage in diversionary, educational or intervention activity and means that No Further Action is recorded on the Police National Computer (PNC). Outcome 22 is recorded when the activity has been completed, if it is not, alternatives can be considered. The Outcome can be used even if the child has not made an admission of guilt (unlike the options described above). It was introduced in April 2019 to increase opportunities for diversion, in response to the over representation and bias towards people from different ethnic minorities reported in the Lammy report. Whilst this was the reason for introducing Outcome 22, its use is not limited in this respect. NPCC guidance states its use does not require decisions to be made jointly by the police and YJS but recognises that joint decision making/discussions would enable an assessment of the child’s needs and referral to appropriate support and activity provided by the YJS, local authority or another relevant agency.

Feedback received for this project suggests Outcome 22 is not always being actively used by police forces in England and rarely in Wales. This may be influenced by it not being regarded as a ‘positive action’ in police recording (although this may change). However, the NPCC guidance states that where it has been utilised, the impacts have been positive for children and is clear it is a diversionary option that could be used as an early intervention as it presents an opportunity to prevent criminalisation, address offending behaviour and provide support.

This suggests No Further Action (Outcome 22) should be an option for consideration when determining the most appropriate outcome for the child as there is greater scope to involve other agencies in delivering the diversionary, educational, or other activities. The use of Outcome 22 is being monitored through the YJB’s Key performance Indicators.

No Further Action can also be used where children have been involved in creating sexual imagery which has been shared (‘sexting’, the practice of sending sexually explicit images or messages by mobile phone). Whilst the child has broken the law, the intention is to take a proportionate response and not criminalise, provided the images have been shared consensually, and there are no aggravating factors, such as evidence of exploitation, grooming, extensive or inappropriate sharing or persistent behaviour. In these instances, it may not be considered in the public interest to prosecute the child, and the police will record No Further Action as an Outcome 21. It also creates the opportunity, should there be concerns, for children to learn about healthy behaviours and relationships and for safeguarding rather than a criminal justice response to be considered.

Monitoring outcomes

There were no substantive issues in relation to monitoring apart from the need to ensure it was as comprehensive as possible:

• There needs to be consistency in approach to get an accurate picture of the use of OoCRs locally, regionally and nationally across Wales. The issue of terminology previously raised feeds into this. HMIP research and analysis highlights the lack of available published data on the use of Community Resolutions, however, the expansion of monitoring of OoCRs through the YJB’s Key performance Indicators will potentially assist with this.
• Diversity and disproportionality need to be part of the standard package of monitoring with analysis undertaken and shared with partners. This should include the impact of diversity on children with protected characteristics, with particular needs, care experience and by gender, ethnicity, gravity of offence and outcome. Further considerations could be monitoring against the principles set out in this document and in relation to all prevention and early intervention activity, (as the Criminal Justice Anti-Racism Plan for Wales suggests) which would include diversion and use of OoCRs.
• Monitoring voluntary interventions provided, completion rates, reasons for non- completion, the length of intervention, at what point interventions are closed and instigating automatic reviews for interventions that reach 12 weeks and next steps, including exit strategies for the child.
• What proportion of children who have received a preventative intervention or been involved in anti-social behaviour have offended and received an OoCR or conviction.
• Whether data on Stop and Search involving children and tracking those Released Under Investigation should become part of data sets.
• What information is shared where e.g. with management boards, scrutiny panels and OoCR decision-making panel members. Regarding the latter, feedback indicated that those most directly involved in the decision-making process were not always aware of progress and completion rates and the impact of their decisions.

Scrutiny panels for youth cases

Each police force area conducts a Scrutiny Panel (independently chaired) consisting of criminal justice partners including the police, Crown Prosecution Service, HM Courts and Tribunals Service (all of which have a force-wide area responsibility) and a YJS manager representing all the YJSs in that force area. The aim of the Panel is to enhance consistency, transparency and public confidence in the use of OoCRs and to ensure that local and national policies are being followed. Cases are discussed to ensure decisions are appropriate and consistent with national and local policy, ensure victims are given proper consideration, understand any gaps in services, and identify local trends.

Findings should be fed back to decision-makers to help develop good practice and learning.

Scrutiny Panels generally dip sample a proportion of cases against an identified theme. However, they may only discuss a small number of youth cases across the force area, which may be a small proportion of YJS cases, bringing into question how much the panels are able to achieve their aim. Panels should have sufficient time to adequately consider cases. The format and amount of information provided should support this and ideally be consistent across Panels. Some YJSs indicated they would welcome a greater number of youth cases being discussed. For this to be effective, there needs to be adequate time to discuss them, which suggests there may be the need in some areas to have a separate Youth Scrutiny Panel. This was recommended by the Magistrates Association in its report on the use of OoCRs. Panels should be supported by relevant terms of reference, including identifying representatives from various organisations who are youth specialists. Terms of reference should be periodically reviewed to ensure they reflect current and policy and practice. The responsibility of providing feedback on the outcomes and learning from the Scrutiny Panels to services is inherent in attendance at the panels but also needs to be improved as one of the aims is to maintain and develop good practice. A further option to consider is whether YJS in the same police force areas conduct their own reviews of outcomes to look at consistency and practice across the police force area they are located in.