We respectfully acknowledge and celebrate the many Traditional Owners of the lands throughout Australia and pay our respects to ancestors of this country and Elders past and present. We recognise that First Nations communities, culture and lore have existed within Australia continuously for 65,000 years.

The Uluru Statement from the Heart says:⁵

We support the Uluru Statement and acknowledge the ongoing leadership of First Nations communities across Australia, who have worked and continue to work tirelessly to address inequalities and improve justice outcomes for First Nations children and adolescents.

Fetal Alcohol Spectrum Disorder (FASD) is a neurodevelopmental disorder caused by prenatal alcohol exposure and has lifelong impacts.⁶ Children and adolescents (10–18 years) with FASD experience cognitive and behavioural problems, mental illness and substance use that can increase contact with, and be exacerbated by, the justice system.⁷

Crime prevention benefits society by minimising economic, personal and social costs.⁸ Prevention requires three tiers of action: primary prevention (stopping crime before it starts), secondary prevention (early intervention initiatives with groups considered to be at higher risk of committing crime) and tertiary prevention (focusing on better outcomes for those who have already committed crime).⁹

There is a clear intersection between FASD, crime, substance use and incarceration. Young people with FASD are more likely to encounter the justice system than young people without FASD.¹⁰ International research suggests that FASD rates are 30.3 times more prevalent among young people in the justice system than in the general population.¹¹

International approaches to youth justice emphasise the rights of children and adolescents, including those with disability. Australia is a signatory to key human rights instruments, including the Convention on the Rights of the Child¹² and the Convention on the Rights of People with Disabilities.¹³ Recently, there has been international pressure on Australia to raise the minimum age of criminal responsibility, which is as low as 10 years in most Australian States. The United Nations Committee on the Rights of the Child recommended increasing the minimum age to reflect research findings in child development and neuroscience that the capacity for abstract reasoning is not fully developed in children aged 13 years and under.¹⁴

The Australian Government’s National Fetal Alcohol Spectrum Disorder Strategic Action Plan 2018–2028 (National FASD Action Plan) was developed to “provide a clear pathway of priorities and opportunities to improve the prevention, diagnosis, support and management of FASD in Australia”.¹⁵ The National FASD Action Plan identifies that young people in contact with the justice system are more likely to have FASD than those in the general population and aims to reduce the prevalence and impact of FASD and improve the quality of life for people living with FASD. Strategies include providing FASD screening, early intervention, management and post-release referral services to young people in custody; enabling community programs for young people who offend; and working with the criminal justice system to implement therapeutic justice interventions. The National FASD Action Plan recommends activities to strengthen education for staff in youth justice systems and community policing, processes to identify FASD early, clear referral pathways for assessment and support, and access to case management and diversionary programs.

However, an independent review of the National FASD Action Plan in 2022¹⁶ identified that “Recognition of FASD in the criminal justice system is lacking in many jurisdictions”¹⁷ and recommended a greater emphasis on screening and diagnosis in education and criminal justice sectors.

Economic analyses confirm that FASD is expensive to society involving health, child protection, education, disability and justice sectors.¹⁸ The implications of a late diagnosis of FASD include a lack of recognition of the support needs of these children and adolescents and missed opportunities to provide holistic support and prevent longer-term adverse health and social outcomes. Conversely, identifying children and adolescents with FASD early can enhance their social and emotional wellbeing, prevent re-offending and improve their life trajectory.

This paper explores the behavioural and cognitive implications of FASD for Australian children and adolescents in the justice system and primary, secondary and tertiary crime prevention strategies.

FASD is a complex condition with variable presentation.

A FASD diagnosis is based on three main criteria:¹⁹

Despite the availability of the Australian Guide to the diagnosis of Fetal Alcohol Spectrum Disorder since 2016,²⁰ many health professionals remain unaware of the FASD diagnostic criteria and do not routinely ask pregnant women about their alcohol use or seek input from a multidisciplinary team for assessment of children with prenatal alcohol exposure. Also, FASD symptoms often overlap with those of attention deficit hyperactivity disorder, autism spectrum disorder, speech and language disorders, mental health disorders, conduct disorder, intellectual disability and oppositional defiant disorder,²¹ which can lead to misdiagnosis, delayed diagnosis or failure to consider FASD.

FASD has lifelong impacts, including physical, cognitive, behavioural and neurodevelopmental impairments.²² Children and adolescents with FASD have poorer conduct, attention, and social and emotional skills than peers without FASD.²³ Early and accurate diagnosis and access to multidisciplinary services and support for individuals living with FASD and their families will enable children to fulfil their potential, improve health and wellbeing, and prevent the development of adverse long-term consequences.²⁴ Failure to recognise FASD will exacerbate functional impairments and put children at risk of contact with the justice system.

The needs of individuals with FASD generally are not adequately addressed, partly due to the lack of availability of timely assessments and support.²⁵ Making a formal FASD diagnosis is a specialised and complex process which can have a high cost and/or long wait times, making it prohibitive for many. Access to healthcare is often difficult for marginalised children, adolescents and families, especially those experiencing multiple health and social issues.²⁶ Children and adolescents with FASD are at risk of substance use disorders and harmful alcohol use,²⁷ making it difficult to engage them in health care services or in a comprehensive neurocognitive assessment. It is not surprising that children, adolescents and families in the community are unlikely to access these services independently without support.

Fortunately, FASD assessment services in Australia are expanding with increased funding in many States and territories, including the NSW-based CICADA FASD service.²⁸ The services use multidisciplinary teams and best practice based on the Australian Guide to the diagnosis of Fetal Alcohol Spectrum Disorder.²⁹

Prevention of harm from prenatal alcohol exposure is vital to promoting good health and social outcomes.³⁰ Alcohol use in pregnancy occurs throughout Australia, in all socioeconomic groups: a systematic review of 78 Australian studies comprising 16 birth cohorts estimates that 48% (95% Confidence Interval 38 to 57%) of women use alcohol during pregnancy.³¹ Further, almost half of all pregnancies in Australia are unplanned and many women are unaware of the risks of drinking alcohol during pregnancy.³²

Although alcohol is used throughout society, social disadvantage is one determinant of frequent, risky alcohol use.³³ Thus, some children with FASD are born into chaotic families where parents frequently use alcohol and other substances and experience high rates of life adversity, which also impacts neurodevelopment.³⁴ In a population-based study in remote WA communities, 55% of First Nations children aged 7–9 years were exposed to high levels of alcohol in pregnancy and 19% had a diagnosis of FASD — a rate amongst the highest recorded internationally.³⁵

These data suggest that public health approaches to reduce prenatal alcohol harm need strengthening. Education has an important role in preventing FASD by promoting awareness of the risks of harm from alcohol use during pregnancy, such as via the “Every Moment Matters” campaign.³⁶ However, evidence-based strategies — adequate pricing and taxation, restrictions on advertising and promotion, and restrictions on the number and opening hours of liquor outlets — are also needed to change behaviour.³⁷

In 2022–2023, 4,542 children and adolescents aged 10–17 years were under youth justice supervision on an average day in Australia, with 3,743 (82%) supervised in the community and 828 (18%) in detention.³⁸

In NSW, children and adolescents with disability (some of whom may have FASD) have higher rates of contact with the youth justice system than those without disability and are significantly overrepresented in youth custody.³⁹ Furthermore, children and adolescents with disability have more justice contact for violent offences (including domestic violence), property offences, sexual assault and related offences, and offences against justice procedures, government security and government operations.⁴⁰ Factors including older age at initial engagement with disability-related services, remoteness of residence and high frequency of contact with child protection were strongly associated with an increased likelihood of a child or adolescent with disability having criminal justice contact before the age of 18 years.⁴¹

Of great concern is the over-representation of Australian First Nations people involved with youth justice systems in every State and territory. In 2022–2023, about half (55%) of children aged 10–17 years who were under community-based supervision and 63% aged 10–17 years in detention were First Nations Australians.⁴² On an average day in 2022–2023, First Nations children and adolescents aged 10–17 years were 23 times more likely to be under supervision and 28 times more likely to be in detention than non-First Nations children and adolescents.⁴³ In March 2024, two-thirds (66.4%) of the youth detention population comprised First Nations children and adolescents, the highest rate on record.⁴⁴

The over-representation of First Nations young Australians with cognitive impairment in the criminal justice system was a focus of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.⁴⁵ In a 2015 NSW survey, almost one in four First Nations young people (aged 12–21 years) in detention had an intellectual disability (Full Scale Intelligence Quotient score below 70), compared with one in 12 non-First Nations young people.⁴⁶ The Royal Commission recommendations included increasing disability training for staff in youth detention, improving screening and assessment practices for children with disability, increasing access to diversion programs, raising the age of criminal responsibility to 14 years, prohibiting use of solitary confinement, and clearly defining safeguards that apply to isolation or seclusion of children with disability in Australia.⁴⁷

Individuals with FASD are disproportionately represented in youth justice systems,⁴⁸ with a prevalence rate 30.3 times greater than the general population.⁴⁹

In Australia, it is likely that many children and adolescents who enter the justice system have undiagnosed FASD. Research at WA’s Banksia Hill Juvenile Detention Centre found that of 99 adolescents aged 13–17 years who underwent the complete FASD assessment, over one third (36%) had a diagnosis of FASD and 89% had at least one domain of severe neurodevelopmental impairment.⁵⁰ Of the 36 adolescents diagnosed with FASD, only two had previously been diagnosed. Many had never had a neurodevelopmental assessment. The Banksia Hill study highlighted the significant level of communication disorders among children and adolescents in the justice system: 74 participants (75.5%) demonstrated language skills below the average range expected for their age, and 45 (45.9%) met the criteria for a language disorder.⁵¹ An earlier study in Victoria found a similar rate of language disorders in justice-involved children and adolescents (46%).⁵²

FASD and youth crime have been in the Australian news in recent years and governments are looking for community-based solutions. In 2016, the nation was shocked by images of a child masked and restrained in the Don Dale Youth Detention Centre, which precipitated the Royal Commission into the Protection and Detention of Children in the Northern Territory. The Inquiry found FASD is a major contributor to the incarceration of children.⁷³ The Royal Commission recommended a comprehensive medical and health assessment on the admission of a child or young person to a detention centre, including an assessment of both physical and mental health and an assessment for FASD.⁷⁴

In 2023 and 2024, youth unrest prompted curfews in central Australia, where “Experts say earlier FASD diagnosis [is] a key step in tackling Alice Springs youth crime”.⁷⁵ In March 2024, as a response to the increase in youth crime, a 12-hour overnight curfew was introduced by the NT Government which banned children and adolescents under 18 years of age from entering the central business district of Alice Springs.⁷⁶ The Alice Springs curfew aimed to provide an immediate response to the pressing issue of youth crime, setting the stage for a broader discussion on long-term, sustainable community safety solutions.

In comments following riots at the Banksia Hill Juvenile Detention Centre in May 2023, then WA Premier, Hon Mark McGowan AC MLA, described the teenagers as engaging in “a form of terrorism”.⁷⁷ When asked if he accepted that many of the children at the facility had disabilities and medical conditions, such as FASD, which impacted their consequential thinking, McGowan replied that this was “more excuse-making”.⁷⁸

No one condones aggressive or destructive behaviour, but the Banksia Hill riots occurred in the context of the recent conviction of a guard for the assault of a child, the use of solitary confinement and restraint, and the inappropriate detention of children in the adjacent adult prison facility. Many children had been locked in their cells for extended periods, for up to 24 hours a day, one boy on 26 occasions in the prior six months.⁷⁹

The incarceration of children is unpalatable. However, in Australia, a child can be deemed guilty of a criminal offence and imprisoned from the age of 10 years. Several States and territories have recently committed to raising the age of criminal responsibility from 10 to 14 years,⁸⁰ consistent with United Nations recommendations, and we strongly argue that this approach must be adopted nationally. Many of the children aged between 10 and 16 years in justice detention, including many children with FASD, are repeatedly detained for petty crime. This can lead to a perpetual cycle of criminal justice system involvement, with the ultimate risk of death in custody.

Strengthening the justice and health systems to address FASD requires a comprehensive strategy encompassing primary, secondary and tertiary prevention measures. This approach includes bolstering child and adolescent services to prevent crime, reforming the justice system to focus on early intervention and diversion programs and improving the identification and support for children and adolescents with FASD. Strengthening these areas is crucial for enhancing wellbeing, ensuring fair treatment and reducing youth crime.

In primary prevention (to stop crime before it starts), there is a need to increase the funding, capacity and staff training in child and adolescent services within the health, education, child protection and justice systems. These factors limit access to multidisciplinary assessments and diagnosis of neurodevelopmental impairments, including FASD. FASD and disadvantage create barriers to wellbeing and help-seeking. Navigating health and social service systems is complex and challenging, particularly for marginalised adolescents and families who require active support.⁸¹

In secondary prevention (early intervention initiatives with children and adolescents at higher risk of offending), the justice system needs reform. As well as increasing the minimum age of criminal responsibility from 10 to 14 years, there is a need for investment in evidence-based diversion programs for children and adolescents as alternatives to incarceration.

Diversion programs reduce reoffending and are significantly cheaper than placing children and adolescents in custody.⁸² In 2022–2023, the total recurrent expenditure nationally on detention-based supervision, community-based supervision and group conferencing for children and adolescents aged 10–17 years was $1.3 billion. Detention-based supervision accounted for the majority of this expenditure (64.7% or $855.3 million).⁸³ In Australia in 2022–2023, the average cost per day per child or adolescent subject to community-based supervision was $305 — much lower than detention-based supervision, which was $2,827 per day.⁸⁴ Diversion programs have advantages for government budgets, the community, and child and adolescent wellbeing.

In tertiary prevention (focusing on children and adolescents who have already committed a crime), there is a need to identify disability, including neurodevelopmental impairments such as FASD, at the earliest possible opportunity following a young person’s engagement with youth justice services so they can receive adequate support to develop pro-social life outcomes. Complicating factors such as substance use can create barriers to accessing developmental and cognitive assessments for children and adolescents who are engaged with the justice system and at risk of FASD. Opportunistic neurodevelopmental and FASD assessments should be considered at the time of incarceration to enable appropriate management during detention and wrap-around support on release.

There is a need to improve the knowledge about FASD and skills for dealing with people with FASD among justice professionals. Professionals working within the justice system should be supported to recognise indicators of children and adolescents with disabilities and understand the implications for behaviour and engagement.⁸⁵ Judicial officers should receive relevant continuing education to understand the ways in which neurodevelopmental disabilities might affect a child or adolescent’s capacity to engage in justice processes.⁸⁶ The Banksia Hill study found that youth custodial officers in WA had limited in-depth knowledge of FASD and welcomed the option to attend training on FASD with a particular interest in applying behaviour management strategies.⁸⁷ Training for youth custodial officers improved knowledge and changed attitudes. The intervention was considered highly necessary, appropriate and valuable by the workforce.⁸⁸

Screening of children and adolescents for neurodevelopmental disability and possible FASD can help identify their capacity to understand and interact with the youth justice system. Screening also identifies individuals who can benefit from additional clinical assessment for neurodevelopmental impairments, including FASD. The National Aboriginal Community Controlled Health Organisation (NACCHO) and The Royal Australian College of General Practitioners (RACGP) recommend all children and adolescents at high risk for FASD should be screened when they have initial contact with the child protection, police or justice systems⁸⁹ for prenatal alcohol exposure and cognitive, language and behavioural problems. However, justice systems in Australia currently lack standardised procedures for screening individuals for FASD, leading to a failure to identify and appropriately support affected individuals.

In Canada, a “red flag” model for screening for FASD is used by the Manitoba FASD Youth Justice Program.⁹⁰ Young people are referred to a FASD diagnostic program if they exhibit the following “red flags”:

Another Canadian FASD screening tool developed for youth justice settings is the Asante Centre for Fetal Alcohol Syndrome Probation Officer Screening and Referral Tool (the Asante Tool).⁹¹ This pre-coded questionnaire enables collection of information on the social and neurodevelopmental history of the young person and the professional’s knowledge of the young person and FASD.⁹²

An evaluation comparing the red flag and Asante Tool screening methods found they identified different individuals as being at risk of FASD and recommended using both methods together.⁹³

Beyond screening, the justice system can adapt its processes to take into account the challenging behaviours and impairments associated with neurodevelopmental impairment. By providing support to respond to communication challenges, children and adolescents will better understand complex legal language and proceedings. Speech pathologists, working in collaboration with local cultural and language advisors, are needed as a core service in youth justice systems.⁹⁴

Given that behaviours are often misunderstood or misinterpreted, understanding an individual’s behaviour using a FASD lens will help develop support and strategies based on an individual’s strengths and difficulties. A strengths-based approach that enhances a child and adolescent’s abilities and interests rather than their deficits, and a partnership with families, is central to planning and providing support.⁹⁵ Professionals may need to reframe their expectations of children and adolescents’ skills and abilities. Further, effective, coordinated and consistent support and interventions that are culturally appropriate are needed across an individual’s lifespan, given that FASD is a lifelong disability.

In the pursuit of community-driven strategies to reduce youth crime, governments are implementing various initiatives ranging from curfews to substantial funding for crime prevention programs with a focus on supporting vulnerable populations such as First Nations children and adolescents. Addressing complex issues like FASD is needed as part of primary, secondary and tertiary crime prevention.

In 2022, to strengthen community capacity to prevent crime, the Australian Government committed $69 million over four years to the Justice Reinvestment Program, a crime prevention program that redirects funding from justice systems to targeted communities.⁹⁶ The approach aligns with the priority reforms in the National Agreement on Closing the Gap,⁹⁷ which aims to reduce the over-representation of First Nations children, adolescents and adults in the criminal justice system. These models provide evidence-based rehabilitation and diversionary programs that have better outcomes than prison by reducing crime and recidivism and are cheaper than detaining an adolescent — estimated in 2010–2011 at $16.73 per day in NSW compared with $652 per day for detention.⁹⁸

In primary prevention, community-based support for children and adolescents with FASD can mitigate behavioural issues by promoting social inclusion for individuals with FASD. Community-based support, including recreational programs such as youth work, is vital to keeping children and adolescents engaged, developing their life skills and giving them meaningful activities to prevent youth crime. The federal Government’s financial commitment to the Justice Reinvestment Program indicates a clear recognition of the value of shifting resources towards proactive, community-led initiatives that address the causes of crime.

There is also need for long-term infrastructure investment in First Nations community-controlled organisations to support First Nations children, adolescents and families, considering their unique cultural and historical contexts and the ongoing effects of colonisation and systemic inequalities. First Nations families living in remote areas have limited access to professionals trained in FASD and multidisciplinary teams.⁹⁹ This contributes additional barriers to the early detection and treatment of FASD. Stigma and shame are important considerations when screening for and diagnosing FASD in First Nations people.¹⁰⁰

The Australian FASD Indigenous Framework guides First Nations and non-First Nations peoples to journey together to heal the harms from colonisation, which laid the foundations for FASD in First Nations communities.¹⁰¹ Changes in ways of knowing, being and doing are proposed to enable space for two-way learning, respect and trust. The Framework draws on First Nations wisdom and practices, which are inherently strengths-based, presenting a transformative approach to healing and culturally-informed interventions in communities.

In secondary prevention, diversion programs are vital. In particular, First Nations children and adolescents with FASD can benefit from being diverted into non-stigmatising therapeutic alternatives run by First Nations people.¹⁰² The co-design of a FASD assessment approach with First Nations workers identified a desire for shared responsibility, a more prominent role for First Nations health workers in the assessment process, and a greater emphasis on First Nations perspectives.¹⁰³ The National FASD Action Plan¹⁰⁴ identifies that community-controlled processes “on country” in First Nations communities will provide a culturally secure and appropriate environment for supporting children with FASD.

In tertiary prevention, community-based education, life skills training, therapeutic and diversionary activities and family support are crucial to facilitating community reintegration following contact with the youth justice system.¹⁰⁵ Access to age-appropriate drug and alcohol services which take into consideration the cognitive and behavioural challenges, care needs and supports for children and adolescents with FASD should be available. Without appropriate and widely-available community programs, including those that provide FASD support, children and adolescents experiencing disability and multiple disadvantage will continue to be criminalised.¹⁰⁶ Community-based education and therapeutic programs are key components of effective tertiary prevention, ensuring that children and adolescents have the skills and support necessary to lead constructive lives free from involvement in the justice system. In Australia, the National Disability Insurance Scheme (NDIS), therapies and behaviour management are just the start of support required for children and adolescents with FASD.

A three-year Canadian Youth Outreach Program (beginning in 2011) for First Nations young people with suspected FASD was evaluated positively.¹⁰⁷ The comprehensive program involved one-to-one support and advocacy by youth support workers. Youth Outreach Program activities¹⁰⁸ included: providing emotional and practical support (for example, transportation and accompaniment to meetings and appointments); assisting young people to understand legal or medical issues or service systems; advocating for young people to access legal, health, education, child welfare, recreational and/or support-related services; connecting young people to school through support with homework, attendance and communication with educators; support to apply for employment; promotion of safe recreation; connection with trusted supports; assisting young people in finding safe housing; assisting young people with conflict resolution, peer and family relationships; and identifying risky behaviours and promoting harm reduction and healthy lifestyles.

The Youth Outreach Program outcomes¹⁰⁹ included improvements in safety, health (sexual health, mental wellbeing, nutrition, dental health), social relationships, support from peers and self-confidence; healthier relationships with partners; increased emotional and practical support; improved life skills, school-related success, job-related skills, knowledge and/or use of other community resources, and participation in healthy recreational activities; and reduced substance use. Although many young people were distrustful of programs, systems or workers, the Program’s focus on providing support within the community and building trusting relationships over time deepened the intensity and effectiveness of the support-related activities.¹¹⁰

This paper explored the behavioural and cognitive implications of FASD for Australian children and adolescents in contact with the justice system. It is likely that significant numbers of children and adolescents with undiagnosed FASD encounter the justice system, where behaviours and communication can be misunderstood. Substantive action at multiple levels is urgently required to address the challenges faced by children and adolescents with FASD within the Australian justice system.

How can we move forward? To prevent interaction with the justice system, a proactive commitment is needed to the primary prevention of alcohol harm in pregnancy, early diagnosis of FASD and better support for children and adolescents with FASD and their families.

For secondary prevention of harm, we strongly argue that justice system reform is required. We need to start by acknowledging that custody is not the right place for children and adolescents with severe developmental or cognitive disability and is harmful to their physical and mental health. We must consider new ways to respond to youth crime, such as justice reinvestment models which shift costs and services into the community. These models provide rehabilitation and diversionary programs that provide alternatives to incarceration, are evidence-based, have better outcomes by reducing crime and recidivism, are far cheaper than custody and are preferable for children, including children with disability. There is also a need for investment in health and education for children and adolescents, particularly groups at higher risk of committing crime. By raising the age of criminal responsibility and investing in diversion programs, we will adopt a more humane approach to justice and ensure that vulnerable children and adolescents, like those with FASD, receive more appropriate, community-based support that is tailored to their needs.

In tertiary prevention, the justice system nationally must be improved to better support children and adolescents who have already committed a crime. We should screen all children and adolescents for FASD and other neurodevelopmental impairments at first contact with the justice system (and indeed at entry to the child protection system). Children and adolescents who are detained within the justice system and who have not accessed cognitive or FASD assessment in the community should be provided with FASD screening and neurocognitive assessment. We must help children and adolescents charged with a crime to understand their court attendance notices and fact sheets and the consequences of their actions and assist them in making their plea. Children and adolescents in contact with the justice system require access to requisite healthcare and support to diagnose neurodevelopmental impairments such as FASD and tailor support to their strengths and difficulties. The justice system can be strengthened by identifying children and adolescents with FASD and responding appropriately by providing specialised support, including education and vocational training, that takes into account their strengths and difficulties to prevent reoffending or incarceration.

Without reform, children and adolescents with undiagnosed FASD may miss out on the support they need and continue to experience poor outcomes that could otherwise be avoided. A justice system that is attuned to the needs of children and adolescents with neurodevelopmental disabilities, including FASD, will not only mitigate the risk of reoffending but will also empower children and adolescents to build their strengths and overcome challenges.