We shouldn’t lock up young offenders with fetal alcohol spectrum disorder. Here are the alternatives

Barely a month goes by without news of children and adolescents who are imprisoned and being mistreated in youth detention.

A new parliamentary inquiry is shining a light on this mistreatment. It’s investigating if youth detention facilities are complying with children’s human rights conventions, and the need for minimum standards of care.

This inquiry is an opportunity to consider alternatives to youth detention that support and rehabilitate children and adolescents who break the law. This is especially needed for those with disabilities relating to brain function (neurodisability), such as fetal alcohol spectrum disorder (FASD).

FASD is a neurodevelopmental disability. It is caused by exposure to alcohol before birth, which injures the brain. We don’t have prevalence data in the general Australian population but we know it affects children from all demographics.

Here’s what we know about the incarceration of children and adolescents with FASD – and what we could do instead.

Imprisoning children from age 10

Children as young as ten years may be incarcerated in Australia.

But prison is not a solution to youth crime. Imprisonment without care can cause harm and entrench disadvantage.

Young people’s brains experience a period of rapid development between ten and 14 and aren’t able to make complex moral decisions.

Children and adolescents with FASD may have cognitive impairment affecting their ability to think, learn, make decisions and remember, or intellectual disability. Their mental age may therefore be significantly lower than their chronological age.

FASD makes it harder to understand

FASD affects children and adolescents’ motivation before committing a crime and their capacity to comprehend the consequences.

Due to their brain injury, children and adolescents with FASD are often impulsive, easily misled and can’t distinguish right from wrong. They may not learn from past experiences.

When they’re in the justice system, they may be suggestible. Poor memory may make it difficult for them to provide reliable witness statements. Due to poor language and communication skills, they may misunderstand court orders, leading to non-compliance.

Rates of FASD are high among young people in the youth justice system. An estimated one in three detainees in Australia has FASD. But many adolescents in contact with the justice system have un-diagnosed FASD and complex needs.

Internationally, young people with FASD are 19 times more likely to be jailed than people without FASD.

Diverting adolescents from prisons

The Productivity Commission’s 2024 report on government services found diversion programs reduced youth re-offending.

It also found diversion programs were significantly cheaper than incarceration. In 2022–2023, the average cost for each adolescent under community-based supervision was A$305 per day, compared to $2,827 per day for adolescents in custody.

In a 2024 report, National Children’s Commissioner Anne Hollonds recommended expanding evidence-based youth justice diversion programs:

Tragically, by not addressing their human rights early on, and instead taking a punitive approach to their offending, we are essentially criminalising some of the most vulnerable children in Australia.

So what do these programs look like?

Many countries have moved from a justice system to a welfare system, which is especially appropriate for adolescents with disabilities like FASD.

Ireland ended the imprisonment of children aged under 18 years in 2017. Children under 18 can now be sent to children detention campuses, which have games rooms and bedrooms instead of cells.

Scotland closed its youth prisons in 2024.

Spain has long used an in-patient approach. Adolescents live in a therapeutic environment with compassionate contact with professionally trained staff.

Successful Australian initiatives offer a foundation for a new model of youth justice.

The Yiriman Project, for example, is run by Elders near Fitzroy Crossing in Western Australia, where rates of FASD are high. The project takes Aboriginal young people at risk of offending onto remote country to engage in culturally based activities, such as assisting Indigenous rangers to care for country. A three-year review of the Yiriman project found positive outcomes for Aboriginal youth with FASD.

Research shows it’s crucial that Aboriginal and Torres Strait Islander people are involved in the design of any programs that affect their communities.

Early detection to prevent re-offending

Early identification of FASD allows children to receive appropriate intervention and support to enhance their social and emotional wellbeing. This may prevent them from re-offending and improve their life trajectory.

FASD assessments are available nationally. Support services for young people with FASD aim to improve their health and wellbeing, address secondary disability, and reduce exposure to risks such as substance use.

For young people who have offended, intensive community-based support programs improve young people’s access to education, life skills and heath-care access. Therapeutic and diversionary activities can also strengthen family relationships, which are crucial to successful community reintegration.

What needs to happen next?

Governments need to invest in evidence-based diversion programs for children and adolescents who commit serious crimes.

These programs provide rehabilitation and support and are effective, compassionate and cost-efficient.

Governments also need to urgently up-skill justice professionals to improve their recognition and assessment of adolescents with FASD and other neurodevelopmental problems.

Early identification and understanding of young people with challenges such as FASD and cognitive impairment will enhance the young person’s health and mental health outcomes, prevent youth crime and benefit society.