Children's Rights and the Minimum Age of Criminal Responsibility

A Global Perspective

Don Cipriani

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317167587
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

Children of almost any age can break the law, but at what age should children first face the possibility of criminal responsibility for their alleged crimes? This work is the first global analysis of national minimum ages of criminal responsibility (MACRs), the international legal obligations that surround them, and the principal considerations for establishing and implementing respective age limits. Taking an international children's rights approach, with a rich theoretical framework and the vitality of the UN Convention on the Rights of the Child, this work maintains a critical perspective, such as in challenging the assumptions of many children's rights scholars and advocates. Compiling the age limits and statutory sources for all countries, this book explains the broad historical origins behind most of them, identifying the recurring practical challenges that affect every country and providing the first comprehensive evidence that a general principle of international law requires all nations, regardless of their treaty ratifications, to establish respective minimum age limits.

Chapter 1
Shifting Perspectives on Children, Shifting Rights and Criminal Responsibility in Juvenile Justice

This chapter begins by presenting a series of basic concepts about rights, who exercises different rights, and the role of competence in describing rights. As explored thereafter, these ideas are tightly linked to the ways in which adult society interprets and constructs the meaning of childhood, and confers certain legal rights to children or not, based on assumptions about children’s competencies.

The central themes in juvenile justice history offer a case study of such dynamics. Classic welfare and justice approaches were built around different ideas about children, which led to dramatically divergent roles for rights and criminal responsibility. The sliding scale from the welfare approach to the justice approach, with competency and responsibility as the central tipping points, is in reality vastly more nuanced than the account offered in the present study. However, as this chapter highlights, its history and elements present the basic dilemmas that virtually every country faces to some extent, stemming from the inherent flaws of each approach. This common narrative is part of the essential background for understanding children, age, and criminal responsibility.

Rights, Competence, and Competing Constructions of Childhood

The very meaning of “rights,” even in summary form, proves to bear very real consequences in the lives of children and their families. In the broadest sense, rights are a special or justified type of claim, or a “claim against someone whose recognition as valid is called for by some set of governing rules or moral principles.”1 Such recognition both justifies and distinguishes rights from other types of claims.

Based on their properties, philosophers often divide rights into the categories of liberty rights and protection rights. Liberty rights affirm people’s prerogative to act with freedom in specific contexts—in the sense that there is no restriction on them—by triggering the duty for others to not interfere.2 Specific liberty rights include, for example, the rights to free speech, to freedom of religion, and to vote. Depending on the context, it is possible for children not to have the requisite capacities to exercise various liberty rights on their own behalf. This does not imply that children are deprived of rights per se, but that responsible adults assist children in asserting relevant interests as protection rights.

Indeed, protection rights are claims that other people owe some duty to protect important interests of the right-holder.3 For instance, the rights to education, health, and physical safety are protection rights, which refer to fundamental interests of all people. Right-holders see these rights fulfilled by others on their behalf—protecting the right-holders’ interests. In contrast to liberty rights, protection rights may exist wherever there are such core interests at stake, and as such all children may possess them without regard to their abilities to exercise their own rights.

The majority viewpoint is that children enjoy protection rights, but that they may or may not be able to exercise liberty rights for themselves depending on the exact context and their capacity in that context. Competence thus takes a central role in the predominant rights discourse; an individual generally must have relevant competence to assert a given liberty right for himself or herself. Even though protection and liberty are both framed in terms of rights, there is an inverse relationship between the two, with competency as the pivot point. With less competency, protection rights come to the fore and liberty rights drift to the rear; yet with greater competency, liberty rights take greater prominence.4 Thus, among other contested questions in rights discourses, the role of competence is highly controversial.

Just as competence has a decisive place for rights, it is influential in the constantly changing ideas about children and childhood. More broadly, the notion and meaning of childhood is not itself a natural phenomenon or scientific fact, even though it is certainly related to the natural, biological realities of children.5 Childhood is a concept that bundles together ideas and expectations about young people and their roles in societies.6 As such, its meaning is socially constructed and varies over time within and across cultures, with no one universal meaning.7 Different conceptions of childhood then predispose people to understand, interpret, and address children’s issues from distinct vantage points, including through the creation of legal norms and standards about children.8

With specific regard to competence, dominant ideas about children’s competence are translated into precise legal age limits that mark the boundaries of childhood and adolescence.9 This age–competency connection reduces the dynamic social construction processes in the background down to fixed age limits, and forces the difficult link between competency and rights. When law prescribes a given age limit denoting the beginning of children’s legal competence in a specific area (e.g., to make medical decisions for themselves), regardless of the mix of ideas and assumptions justifying that age, it demarcates the onset of a specific liberty right. Children younger than the prescribed age are assumed legally incompetent in that context. They still enjoy protection rights for their relevant interests, but not liberty rights to assert their interests on their own behalf. In the end, the extent of justification for protection rights versus liberty rights—and thus the amount of control that the adult world has in deciding and protecting children’s interests—is in effect negotiable based on predominant images of children and their competencies.10 Competency is thus a central aspect among notions about childhood’s meaning.

In most countries, children progressively acquire liberty rights as they pass successive age limits, each denoting legal competency and responsibility in different areas. Examples include legal and medical counseling without parental consent, the end of compulsory education, marriage, sexual consent, and the minimum age of criminal responsibility (MACR). For instance, Germany has reported a series of over 25 such age limits tied to 11 different age brackets.11 Typically, the age of majority in a given country is the final or nearly final age limit, bringing adult rights and responsibilities in most contexts. This approach is broadly reflected in the United Nations Convention on the Rights of the Child (CRC), which is introduced more fully in Chapter 2. CRC Article 1 designates 18 as the general age of majority, defining as children all human beings younger than this age.

In consideration of related information submitted under the CRC, it is safe to say that age limits vary extremely widely, both by the same limit among different countries and by diverse limits within countries. Apart from international norms, this seems a natural consequence of different political, historical, cultural, and other factors across countries that feed into the construction of childhood and designation of age limits. Within individual countries, however, the principle of consistency holds more strongly that the reasons underlying different age limits should roughly correspond across legal contexts.12 Despite variations in the minimum competencies held necessary for various liberty rights, it is generally incoherent to argue that children at a given age are mature and responsible in one domain, yet unready to exercise rights on their own behalf in a comparable domain. Indeed, disparate national age limits often suggest an inconsistent narrative of children and their legal status. This is a further indication that children’s age limits—plus the notions of competence behind them, and the liberty rights to which they are the gateway—depend most heavily upon fluctuating social constructions of childhood, and not on children themselves.

Welfare Approach and the Postponement of Criminal Responsibility

Contemporary juvenile justice debates exemplify the foregoing discussions on rights, competence, and children. In the simplest terms, the central continuum plays out from the welfare approach—which essentially dismisses the competence and criminal responsibility of children—to the justice approach—which relies upon criminal responsibility and children’s alleged competence as its very foundation. The modern notion of a juvenile justice system as distinct from adult criminal justice began with a strong welfare orientation, but recent decades have seen clear shifts towards justice models. Although descriptions in terms of a welfare–justice continuum are simplified for the purposes of this study, an historical overview of the welfare approach and the founding of modern juvenile justice systems begins to bring relevant issues to light.

Origins of Dubious Rescue and Aid

In general terms, juvenile justice finds its origins in earlier pauper laws, criminal justice systems, child protection systems, and other elements. Towards the end of feudal England, authorities developed a range of policies to cope with poverty, which by the 1500s and 1600s included statutory authority to remove children from the custody of their pauper parents.13 Children were placed as apprentices with others until the age of majority, in order to ensure their proper upbringing. American colonies imported English poor laws, including a prominent role for the forced apprenticeship system, and took these laws west as Europeans settled further into North America. In their apprenticeships, children’s labor was intended to offset the costs of care and education, but the quality of care provided was questionable.

The industrial revolution changed the very nature of children’s labor, care, and education. In the United States, as in other countries, the family-based economy and children’s role in it diminished, thus propelling new ideas about children’s proper place in the family and society.14 From pre-industrial ideas about children as small adults integrated in work and family life, society increasingly saw children as distinct from infants and adults, as a class that was both innocent and impressionable.15 Social reformers sought to protect and isolate children from any wayward influences, especially in the context of burgeoning industrial centers. While this movement led to historic developments such as public education systems and child labor laws, many argue that its presumably benevolent spirit concealed the larger motivation of social control over the children of urban poor, minority, and immigrant families.

In terms of social policies for the poor, by the 1800s the United States saw an increasing focus on almshouses, work houses, and poor houses—in effect, institutionalization of the poor and pooling of their labor. These adult-oriented centers came to be seen as inappropriate for children. At the same time, the forced break-up of families and apprenticeship of children continued, and dedicated children’s i...

Table of contents

• Cover Page
• Half-Title Page
• Title Page
• Copyright Page
• Table of Contents
• List of Figures and Tables
• Foreword
• Preface
• Acknowledgements
• Dedication
• 1 Shifting Perspectives on Children, Shifting Rights and Criminal Responsibility in Juvenile Justice
• 2 Children's Rights' Mediation of Welfare–Justice Tensions
• 3 MACRs and States' Obligations under Regional and International Law Instruments
• 4 Historical Influences on MACRs
• 5 Current MACRs Worldwide and Modern Trends
• 6 Practical Implications and Challenges of MACR Implementation
• 7 Making MACRs Work for Children's Rights
• Annex 1 United Nations Convention on the Rights of the Child
• Annex 2 Worldwide MACR Provisions and Statutory Sources by Country
• Index