Responses to Serious Offending by Children

Principles, Practice and Global Perspectives

Nessa Lynch, Yannick van den Brink, Louise Forde

• Publisher: Routledge
• Year: 2022
• ISBN:
  9781000582406
• Edition: 1
• Topic: Ciencias sociales
• Subtopic: Criminología

This book explores the principles, practice and challenges in determining justice system responses to serious offending by children globally.

Divided into four parts, the book provides a balance of theoretical and empirical insights. Anchored in a theoretical framework based on the human rights of children, as set out in the UN Convention on the Rights of the Child, it considers the relationship between scientific evidence (such as brain development) and the human rights framework, before going to explore the diversity of responses to children who are found responsible for serious offences. It brings together experts from various disciplines to fill a gap relating to serious offending by children in the literature. Scholars from Africa, Latin America and Asia, as well as Europe, North America and Oceania provide perspectives from legally, socially and culturally distinct jurisdictions. The first part focuses on the theoretical framework and explores the applicable standards and principles, including the relevant human rights framework and penological approaches to sentencing children for serious crimes. The second part analyses available empirical evidence, including evidence relating to the profiles of children who commit serious crimes, child and adolescent development, effective sentencing approaches and evidence of disparities in responses to serious offending by children. The third part provides a discussion of justice system responses to serious offending by children in a range of jurisdictions or regions with diverse and distinct legal, social and cultural contexts. Finally, the book uses the theoretical framework, empirical evidence, and case studies of jurisdictions to reflect on how principles relating to responses to serious offending by children can be translated into practice, and to highlight key debates and issues that will need to be explored into the future.

Adding much-needed international perspectives to the scholarship addressing the issue, this book will be of great interest to academics, students, legal practitioners and social work professionals working on youth justice and children's rights across the globe.

1IntroductionResponses to Serious Offending by Children: Principles, Practice, and Global Perspectives

Nessa Lynch, Yannick van den Brink and Louise Forde

DOI: 10.4324/​9781032107707-1

1.1 Context

This collection explores global penal responses to children who commit serious offences such as homicide and serious violence. Despite significant advances in the understanding of children’s brain development and the near universal ratification of the United Nations Convention on the Rights of the Child (CRC), children around the world continue to be subject to punitive and indeterminate sentences designed for adults. Even in jurisdictions generally regarded as tolerant and principled, children accused of or convicted of serious offences are excluded from some or all of the protections of child justice systems (Van den Brink and Lynch 2021).

In some states, there are even risks of regression to greater levels of punitiveness where significant events occur. There is often substantial media and public interest in the prosecution and disposal of these issues by the courts and other responsible state authorities. Recently, the case of two 13-year-old boys (‘Boy A’ and ‘Boy B’) convicted of murdering a 14-year-old girl attracted significant public interest in Ireland (Carroll 2019). Similarly, in the Netherlands, two recent cases of child-on-child homicide sparked massive public outcry and political debates about raising the maximum sentences for children who commit serious offences (Asscher et al. 2020). In India, too, a case of a child offender who was involved in the brutal gang rape and murder of a girl sparked punitive reforms of the justice system for children (see Ali and Ganguly in Chapter 12 of this volume).

While there is a significant and growing body of scholarship on youth justice generally, and on the theory and practice of children’s rights in youth justice (Hollingsworth 2013; Kilkelly and Liefaard 2019a, 2019b; Liefaard 2015), less has been written from a children’s rights perspective on responses to children who commit serious offences (Lynch and Liefaard 2020). The focus has largely been on how existing laws and practices have impacted children and their rights. Scholars have identified how punitive sentences such as life imprisonment and life without parole contravene children’s rights (e.g. Mujuzi 2010, O’Brien and Fitz-Gibbon 2016). Capital punishment (e.g. James and Cecil 2003; Linde 2011) is without doubt contrary to human rights standards. Though the CRC does not specifically prohibit life imprisonment or imprisonment for children, there have been regular calls to end life imprisonment and other punitive sentencing options for children (e.g. CRIN 2015; Yates and Ratledge 2019). The United Nations Global Study on Children Deprived of their Liberty (Nowak 2019) has highlighted the impact for children of imprisonment and other forms of detention (cf. O’Brien and Foussard, 2019; Forde and Kilkelly 2019; Goldson and Randazzo 2021). This body of literature and analysis clearly demonstrates the law, policy and practices which are in contravention of children’s rights standards and the impact they have on individual children and groups of children (such as minority and indigenous children) (Libesman 2007).

In contrast, there is less commentary on implementation and how principles translate into practice, though this issue, too, is now being subject to increased attention. For instance, recent work by Kilkelly and Bergin (2021) advances the thinking on child-centred and rights-based practice in custodial institutions. Grappling with a principled approach also involves consideration of what the public interest is in cases of offending by children and what weight should be placed on public safety (Tisdall, Brown, and Docherty, 1998). Where serious crimes are committed by children, several sets of rights and interests are at stake; not only the interests of the child, but also those of the victims (this term includes close relatives of murder victims) and the wider public interest. The recognition, and balancing, of these interests is well documented in general (adult) criminal justice and sentencing literature (Bassiouni 2006). The children’s rights and human rights framework also recognizes the legitimacy of the interests of victims and the public (UN Committee on the Rights of the Child 2019, para. 76), though this aspect receives remarkably little attention in the child justice literature (Lynch 2018a, 2018b, 2018c; Van den Brink 2019; Van den Brink and Lynch 2021).

This volume builds and expands on earlier publications (Forde 2018; Lynch 2018a; Van den Brink and Lynch 2021). In previous work, we made preliminary reflections on how penal cultures and legal traditions may influence responses to children who commit homicide. Our motivation in bringing this collection together is our longstanding interest in those children who are excluded from some or all of the protections of the youth justice system. This disparity in the level of protection provided to children in conflict with the law is most acute at the most serious end of the system, for children who commit the most serious crimes and who may be subject to the most severe or punitive response such as indeterminate or long periods of imprisonment. It seems that in some jurisdictions a lenient child justice system for the bulk of (minor) offences can only exist – i.e., is only accepted from a political and societal point of view – by virtue of the possibility to harshly sanction children who commit serious crimes (cf. Asscher et al. 2020, Van den Brink and Lynch 2021). This, however, is at odds with the international children’s framework which demands equal rights protection for all children (cf. Van den Brink 2021a, 2021b). Overall, there is a need for reflection and guidance on what a principled and evidence-based approach to responding to children who commit serious crime might look like.

In this collection, we also recognize that the English language literature on children’s rights in youth justice can be largely western-centric (Faulkner and Nyamutata 2020; Stalford and Lundy 2020). We aim through this book to introduce or deepen the understanding for English language readers of jurisdictions that do not feature regularly in the literature, that we believe can add richness and diversity to scholarship and knowledge. Against this background, we invited a range of contributors, encompassing a global spread across different legal systems and penal cultures. We also aimed to include contributors from a range of disciplinary perspectives, spanning law, psychology, psychiatry, sociology, and multi-disciplinary perspectives. Our individual contributors are from diverse roles in the justice system: scholars, advocates, lawyers, clinicians, members of the law reform, and human rights communities and judicial officers. We also aimed to include a range of expertise – from established globally recognized scholars and experts to emerging scholars and postgraduate researchers.

A final note on terminology: throughout this collection, we use the term ‘child’ to refer to anyone under the age of 18, and ‘child justice system’ in preference to ‘youth justice system’ or ‘juvenile justice system’ in line with the terminology adopted by the UN Committee on the Rights of the Child in its recent General Comment No. 24. In some cases, individual contributors use terms such as ‘juvenile justice’ or ‘minor’ where that is appropriate in the national context. In addition, references to serious offending should be understood to include crimes such as homicide, serious violent offending and serious sexual offending.

1.2 Structure of the Collection

The collection contains several chapters which establish principled and evidence-based frameworks which are relevant to responding to children who commit serious offences before it moves to a consideration of jurisdictionally and regionally specific analyses of practice. Finally, a concluding chapter draws the strands together and foreshadows issues which will require further work.

Part I of this collection explores the principles which should underpin responses to children who commit serious offences. Globally recognized children’s rights scholars Ursula Kilkelly and Ton Liefaard examine the human rights framework as it applies to children in youth justice systems – and particularly foreshadow the gaps in the literature and the human rights guidance relating to children who commit serious offences (Chapter 2). Norwegian post-doctoral researcher Ingun Fornes analyzes how established penological principles such as retribution, rehabilitation, and restoration must be adapted and must evolve when applied to children (Chapter 3).

Part II focusses on the evidence-base that is available to inform responses to children who commit serious offences. From Aotearoa New Zealand, psychologists Reil and Lambie systematically review the evidence on the profiles of children who are responsible for serious harms and foreshadow what evidence-based penal and welfare responses which these needs might look like (Chapter 4). Dutch PhD researcher Eva Schmidt and UN Committee on the Rights of the Child member, children’s rights scholar and South African national Ann Skelton examine how the increasing recognition of scientific evidence on brain development has informed human rights standards and influenced litigation towards rights based and more tolerant outcomes for children in the youth justice system (Chapter 5). Dutch forensic child care science experts Asscher and Creemers assess what the evidence shows on what effective sentences and outcomes for children who commit serious offences involve (Chapter 6). An international team of researchers – Van den Brink, Forde, Burghout, and Beljaars – review the literature on disparities in sentencing practices, highlighting how current practice in many states has disproportion...

Table of contents

• Cover Page
• Half-Title Page
• Series Page
• Title Page
• Copyright Page
• Contents
• List of Tables
• List of Contributors
• Acknowledgements
• 1 Introduction: Responses to Serious Offending by Children: Principles, Practice, and Global Perspectives
• PART I Principles
• PART II Evidence
• PART III Global Practice
• PART IV Conclusion
• Index