Children’s Rights and Juvenile Justice
What does fairness require of a juvenile justice system?1 And how are the requirements of justice to be squared with the according to children of rights? We can start to answer to these questions by acknowledging that children have, under the United Nations Convention on the Rights of the Child (UNCRC),2 a wide range of rights. As a ratifying state the United Kingdom must seek to ensure that its statutory and case law conforms to the provisions of the UNCRC. This requirement, in turn, means that any juvenile justice system has to respect the according to children of a very range wide of rights.
Yet one model for dealing with children in trouble or at risk – one that the Children’s Hearings System in Scotland arguably instantiates – attends not so much to the rights of children as to their needs (Kilbrandon 1964; Lockyer and Stone 1998). The assumptions underpinning a ‘welfare’ model of juvenile justice seem on the face of it to be in tension with the idea of young people as possessed of rights. How, it will be asked, can we think of children both as vulnerable young persons whose needs must be met and as agents capable of exercising fundamental rights? Hence I want to take up the questions of how a rights discourse affects the way we conceive a juvenile justice system. In doing so I want also to address a question the legal theorist Neil MacCormick posed about how a ‘welfare’ approach to children in trouble with the law can be made consistent with the requirements of justice (MacCormick 2001).
Children and rights
Children are accorded rights under the United Nations Convention on the Rights of the Child. These rights need not be enshrined in, nor even protected by, the domestic law of those states that have ratified the Convention. Indeed these rights are extensively violated throughout the world. It is important to recognise that moral rights need not be legal rights, just as legal rights need not be viewed as moral rights. Moreover, even if we think of the Convention rights as purporting to be moral rights, that does not settle the question of whether or not children ought to have these rights.
Because someone has a moral right to something does not mean that she3 will have this same right legally recognised, although of course the case that supports a moral right lends powerful backing to the claim that it should be a law. There is a basic distinction between the rights that persons have under law – sometimes called their ‘positive’ rights or legal rights – and rights that they have morally. This is not a distinction between two very different sets of rights. One and the same right can be both a moral and a legal right. The distinction concerns the status of the rights. A black slave in antebellum America had a moral right to his freedom that the southern states’ laws denied him.
Throughout history demands for legal rights have been driven by the view that whatever persons are morally entitled to they should also be legally entitled to. Rights campaigns are motivated by the claim that the law should catch up with, and recognise, what is universally acknowledged as a moral truth. Nevertheless not all moral rights should be legal rights. There are many things to which I am morally entitled – to the showing to me of basic respect, to the expression of gratitude for services rendered, and to being cared for in my dotage by my adult children – which are, properly, not a legal entitlement. From the other side, what is recognised as a right by the law need not be a moral right. It is perfectly coherent to argue that the law has been mistaken in giving rights to individuals who are not morally entitled to have them. A significant number of philosophers and theorists have indeed maintained that children should not be conceived as the possessors of rights (O’Neill 1988; Purdy 1992). This has been done for a variety of reasons: for instance, that children are not qualified, as adults are, to possess rights; that it is not in the interests of children to accord them a liberty to lead their own lives; that it subverts the valued institution of the family to regard its members as being able to exercise claims against one another. It is important to add that the denial that children should have rights does not amount to the view that adults are under no obligation to care for or to promote the interests of children. We may be duty bound to behave in certain ways towards others who nevertheless cannot claim such behaviour from us as their right.
However, giving children legal rights or according them a certain status at law will make a huge difference to how we then think about them. If the law represents children in a certain light – as entitled, for instance, to make claims against adults – then it is correspondingly harder to continue seeing them as helpless dependants. At the same time children may make good use of the status they have been accorded legally to show that they do indeed merit that standing. Or they may simply employ the opportunities provided to acquire the requisite abilities. Children may be able practically to prove that it was right to give them rights.
The UNCRC is not a legal instrument and is not incorporated into the UK’s domestic law in the way that the European Convention on Human Rights is now incorporated as the Human Rights Act 1998.4 Yet the UNCRC has considerable influence on our understanding of the legal status of children. It remains the single most important contemporary formulation of what by general agreement children are entitled to. Yet, just as according a right in law does not settle the matter of whether such a right is properly possessed, so the UNCRC’s list of children’s rights does not close discussion of what rights children should have. There are, and have been, other charters of children’s rights, and some of these give children rights that are not included in the UNCRC.
Nevertheless the UNCRC is an inescapable starting point and context for thinking about the status of children. Over 190 countries have ratified the Convention, which codifies a recognisable body of generally shared thinking about the rights of children. It gives children those rights we – and the ‘we’ here is the unavoidably parochial subject of modern western, liberal democratic thought – agree they should have wherever they might live in the world today. The fact that the systematic and prevalent abuse of children’s rights continues should not blind us to the UNCRC’s acknowledged significance.
One feature of the UNCRC deserves special mention: it explicitly recognises, and affirms, that children are different from adults. Existing international charters and covenants on human rights, such as the European Convention on Human Rights (1950)5 or the International Covenant on Economic, Social and Cultural Rights (adopted by the United Nations in 1966 and came into force in 1976), give all human beings fundamental rights. As small and young human beings, children might be thought to have at least and perhaps only all those rights accorded their adult counterparts. Yet the UNCRC gives rights to children because and to the extent that they are children. Indeed the Preamble to the UNCRC quotes from the previous Declaration of the Rights of the Child, which states that ‘the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth’. In very similar terms the Preamble of the African Charter of the Rights and Welfare of the Child (1990) recognises that ‘the child, due to the needs of his physical and mental development requires particular care with regard to health, physical, mental, moral and social development’. In other words it is because a child is not an adult, and in respect of the differences between child and adult, that the UNCRC gives the rights it does to children. In sum, the UNCRC gives to children some of the rights that adults have, such as the right to life. It does not give to children some of the rights that adults are given, such as the right to vote or to work. It gives to children rights that adults are not given, such as the right not to suffer abuse or neglect.
Types of children’s rights
It is conventional to offer the following typology of children’s rights. On the one hand are participation rights. These, to simplify, represent children as subjects or agents, capable of exercising for themselves certain fundamental powers. Examples from the UNCRC are the rights of children under Article 13 to freedom of expression or that under Article 15 to freedom of association and to freedom of peaceful assembly. On the other hand, there are protection rights. These – again to simplify – represent children as patients or ‘objects of concern’ (Butler-Sloss 1988, p.245), potential victims of forms of harmful treatment. Key examples from the UNCRC are the right of the child under Article 19 to be protected from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation; or Article 32, which accords the child the right to be protected from economic exploitation and from performing hazardous work.
This distinction between protection and participation rights is often invoked in the service of an argument that children are, simultaneously and contradictorily, viewed as both capable and incapable of looking after their own interests. They are seen as needing to be protected and yet as entitled to make their own life choices. Yet we should proceed cautiously. For their part adults are given both liberty and welfare rights. The latter – such as rights to health care, to adequate housing and to gainful employment – are rights to be treated in certain ways or to receive certain goods. By contrast, liberty rights are rights that empower their possessors to act in ways that they choose.
Think of protection rights as a subset of welfare rights. It is true that adults have protection rights – not to be assaulted, for instance. However, the kinds of protection rights accorded to children are not normally those given to adults. Children merit protection against forms of ill-treatment they can suffer only inasmuch as they are not adults capable in principle of caring for themselves. There is thus in law no equivalent of an Article 19 to protect adults from abuse or neglect. This state of affairs derives from a strong antipaternalist assumption that adults should, in general, be at liberty to suffer the risks of their own actions so long as they are choosing voluntarily and are adequately forewarned of the dangers. We do not extend this antipaternalist assumption to children who are thought of as in need of forms of protection it would be utterly inappropriate to accord to adults. John Stuart Mill’s celebrated antipaternalist liberty principle is qualified in the following manner:
It is, perhaps, hardly necessary to say that this doctrine is meant to apply only to human beings in the maturity of their faculties. We are not speaking of children or of young persons below the age which the law may fix as that of manhood or womanhood. Those who are still in a state to require being taken care of by others must be protected against their own actions as well as against external injury. (Mill 1859, p.69)
It is worth adding that Mill himself clearly distinguished between a doctrine of social and political liberty, and the rules appropriate to the regulation of economic activity. Mill was disposed, as many libertarians are not, to safeguard the interests of labourers and to protect them from exploitation or from subjecting themselves, even voluntarily, to injurious or disadvantageous working conditions (Mill 1848, Book IV).
Protection and participation rights
The tension, or perhaps contradiction, between participation and protection rights finds its most dramatic expression in the two rights that are at the heart of the UNCRC, and indeed of all legislative instruments that deal with children. Article 3.1 of the UNCRC states that:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
The key legislative instruments of the United Kingdom in respect of children state that the child’s welfare shall be the paramount consideration in determining key questions in respect of a child (Children Act 1989; Children (Scotland) Act 1995).
Article 12.1 of the UNCRC, on the other hand, affirms that
State parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the view of the child being given due weight in accordance with the age and maturity of the child.
Once again, legislation in England and Wales requires a court to have regard to the ‘ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)’ (Children Act (1(3) (a))), with a similar provision in Scotland (Children (Scotland) Act 1995, para. 16(2)). Whereas Article 3.1 requires that the interests of any child, whatever her age and maturity, be promoted, Article 12.1 relativises the entitlement of a child to have her views taken account of to her capacities: her capacity to ‘form’ a view and her ‘maturity’. Thus the Article stipulates, first, a threshold requirement upon the possession of the right to express one’s views, namely that the child should be ‘capable of forming’ views, and, second, accords a weight to any such views proportionate to the child’s maturity (for criticisms of these separate tests see Lockyer and Stone 1998, p.106).
In essence Article 3.1 is paternalist as are those other UNCRC Articles that can be described as ‘protectionist’. For Article 3.1 requires that those entrusted with or in a position to provide for the care of children do what they, but not necessarily the child herself, judge is best for the child. By contrast the tenor of Article 12.1 is antipaternalist, as are those other UNCRC Articles that may be described as ‘participatory’. Article 12.1 requires those who can care for or protect children to take seriously (the more seriously the more mature the child) what the child wants to happen. In the final analysis what a carer judges best for the child may diverge from what the child herself views as being for the best. Yet the UNCRC does not specify any more of a hierarchy of rights or principles than UK legislation. Article 4 of the UNCRC simply asks signatory states to take ‘all appropriate measures’ to implement the rights of the UNCRC. ‘The rights’ may reasonably be read as ‘all the rights equally’.
Much then may depend on the precise formulation of the ‘best interests principle’. It is thus worth noting that whereas the UNCRC speaks only of the child’s best interest as a primary consideration, the UK legislation says that the child’s welfare shall be the court’s ‘paramount’ – that is, most important – consideration. On the stronger formulation a child’s interests or welfare, as determined by those best placed to determine it, shall trump her own expressed views as to what shall happen.
Yet there is surely more to say about the relationship between Articles 3.1 and 12.1. First, showing that a child has got it wrong about her own best interests does not of itself show that she lacks the maturity to decide for herself. There is a general point of importance at stake here that is relevant even to the decisions of adults and to the proper scope of any paternalistic intervention into these decisions. A paternalist is warranted in usurping a person’s choices only if the person is not competent to make her own choices and not just because the person chooses foolishly. It is the incapacity to choose that uncontroversially justifies paternalism. The folly of the choice counts in favour of that putative incompetence; it does not directly justify the paternalism.
Imagine a child who disputes what an official agency thinks should happen to her: an award of parental custody, a determination of where she shall live, a programme of social or educational work. The fact that the agency disagrees with the child does not of itself prove that the child lacks the maturity to decide for herself. It may think that she would be making a bad choice if allowed to do so, but this does not of itself warrant the judgement that she is incapable of making her own choices. After all adults are allowed to make – and very frequently do make – stupid decisions. Hence the views of a child as to what shall happen must still be given a weight proportionate to her maturity even when those views are judged to be contrary to her own best interests or welfare.
A further point to make about the relationship between Articles 3.1 and 12.1 is as follows. What a child confidently says she thinks is in her best interests need not be in her best interests. Indeed it will very often not be. Moreover those entrusted or empowered to act in her interests would be failing in their obligations under Article 3.1 if they did not accord a significant weight to what they so judged to be in the child’s best interests. However two further comments are in order. First, what a child views as being in her best interests can provide us with an invaluable insight into what in fact is in her best interests. When a child tells us what she wants to happen she gives us important, and probably irreplaceable, information about her desires, beliefs, hopes, anxieties, fears, attachments and commitments.
Second, it surely cannot always be in a child’s best interests to be compelled to do what she does not think is in her best interests. An influential claim in contemporary political philosophy is expressed under the title of the ‘endorsement constraint’ (Kymlicka 2002, p.216). This is held to apply to any sane adult and maintains that her life only goes well, and can only go well, if it is led from the inside according to values that she herself endorses. Many believe that the endorsement constraint is sufficient to show that paternalism, in respect of adults at least, is self-defeating. For you cannot force a person to lead the life that you think is better for him, since if he does not share your judgement and himself think it better, then he will not find it worth leading and it won’t be better for him.
Something similar if not, strictly, exactly the same may be the case with children. We may not think that children are capable, as adults are, of choosing how to lead their lives, of having well-formed views about the best thing to do. Nevertheless, forcing them to do what you, but not they, think is for the best need not in fact be for their best. Children, like adults, do have beliefs and preferences. Enforcing courses of action that go against the grain of these beliefs and preferences can simply be counterproductive.
Justice and welfare
The distinction between participation and protection rights might be thought to bear some relation to an influential distinction between ‘justice’ and ‘welfare’ models of dealing with young offenders (see the Introduction to this book). The distinction can broadly be drawn as follows. A welfare model addresses the needs of the child, viewing these as the source of her misdeeds. It seeks to rehabilitate or to treat the child, but not to punish her for her errors. By contrast the justice model focuses on the deeds of the child, viewing those that are misdeeds as meriting appropriate penalties. The child is to be punished, not helped or treated. In arguably similar terms protection rights are given to a child in respect of her needs, whereas participation rights are given to the child as an agent with her own wishes and views. The Scottish Children’s Hearings System is often cited as a classic welfare model that speaks to the ‘needs not deeds’ of the child, although supporters of the system increasingly emphasise the importance of focusing on both. This prompts the question of whether or not such a ‘welfare’ system for dealing with young offenders answers to the requirements of justice. A further question is how it is possible to reconcile the welfarist approach to young offenders with an ascription to them of rights.
An approach that attends to ‘needs not deeds’ is not disposed to see any fundamental difference between the child who offends and the child who is in need of protection against abuse, neglect and other harms. Such indeed was the case with the Kilbrandon Report, which gave birth to the Scottish Children’s Hearings System (Kilbrandon 1964). Hence any talk about how a juvenile justice system addresses the welfare of the child offender cannot be separated from broader questions of how the interests of all children are protected and promoted. That this is a proper matter of justice, more broadly understood, will be defended in the following section of this chapter.
But can we protect a child’s interests or welfare and at the same time see the child as having participatory rights? Protecting someone against certain harms is not inconsistent with attributing to that person the capacity to exercise agency and rights. Some adults are vulnerable to forms of harm and ill-treatment that cannot be, or are unlikely to be, suffered by other adults: the disabled, members of ethnic minorities and the elderly, for example. We do not conclude that a vulnerability to suffer a harm that another will not suffer makes for an inability to secure adequate protection against that harm, or to act to demand protection. Protection rights protect children against harms that they suffer only or principally inasmuch as they are children. For instance, we believe, rightly, that a greater wrong is done to a child who suffers sexual abuse at the hands of an adult than is done to an adult who suffers non-consensual sex. But if we are to see children as the holders of protection rights we must guard against seeing them as passive, defenceless patients, or ‘objects of concern’, incapable of recognising their own interests. Protection rights are there to protect children against abuse by adults; they are not rights that of their nature cannot be exercised by children against adults. In short, the granting of protection rights to children does not, of itself, construe them as only the loci of needs.
Within western jurisdictions there has been a perceptible shift away from welfare towards criminal justice models (Muncie 2002, pp.27–35). Some of this may be due to a popular perception of the wickedness of contemporary youth – doubtless reinforced by the reporting of youth crime in the popular press – and a demand that the misdeeds of the young not be condoned but be appropriately punished. A common misperception of welfare-orientated systems of juvenile justice, such as the Scottish Hearings System, is that they simply spoil and indulge young offenders who know only too well how to exploit a non-punitive system (Morris et al. 1980).
However, the shift to a criminal justice model may also be attributable to a changing perception of children as agents, a change that can be explained in part by the increasing use of a participatory rights discourse in respect of children. If children do have and do exercise rights, especially liberty rights, then surely, the reasoning runs, they are properly thought of as responsible for their own actions? And if they are responsible in this manner then their misdeeds should be punished accordingly. The American Supreme Court determined in the landmark case In re Gault (1967) that the Fourteenth Amendment, which affords all citizens of the United States the equal protection of its laws, is not for adults alone. Thus children are entitled to the very same fundamental legal protection as adults.
The Supreme Court in the Gault case did not suggest that a 15-year-old should have appeared in an adult rather than a juvenile court. However, when children are conceived of as having the same due process rights as adults rather than simply being in need of protection by adults, it is natural to see them as more accountable to society for their actions. Hence the greater appropriateness of a criminal justice model for dealing with their offences. However, it is a gross oversimplification to think that the welfare model represents the child as not responsible for her actions, whereas the criminal justice model presupposes a capacity for wrongdoing on the part of the punished person. Certainly it is unfair to punish someone whom we view as not responsible for their actions. That is why we do not normally punish those persons whose ‘crimes’ can be explained by, and hence excused in virtue of, their insanity or ignorance.
Yet though this may be true, the converse does not hold. Even when we can reasonably hold a child to be responsible for her actions it does not follow that it is proper to try her in a court. The Scottish Law Commission’s Report on the Age of Criminal Responsibility (Scottish Law Commission 2002) made the entirely correct distinction between two senses of an age of criminal responsibility. In one sense this age marks the point at which someone may be held responsible for their actions – that is, be properly viewed as capable of appreciating the difference between right and wrong and of acting voluntarily in the light of this difference. In another sense the age marks the point at which it is appropriate to subject someone to the processes of a criminal trial. The two ages need not correspond.
In the UK, in 1993 two 11-year-old boys were convicted of the murder of a toddler, James Bulger. There is little doubt that they acted maliciously, knowing and understanding the wrongfulness of their actions. They were morally responsible for the murder. In 1999 the European Court of Human Rights ruled that the proceedings at the original trial had violated their rights to a fair trial.6 The original proceedings were unfair in that the defendants were compelled to sit in a large court, packed with people, whose conduct had all the formality of an adult trial – the judge and counsel, for instance, wearing wigs and gowns. The European Court ruled that the defendants were simply unable to follow the proceedings and hence to act in their own best interests.
We should thus remember that a criminal court does at least two things. First, it adjudicates on the truth of the matter, and determines whether or not the person committed the offence and displayed the required mens rea – that is, was guilty as charged. Second, it apportions an appropriate penalty in the light of this determination. Thus a court serves the ends of truth and those of the good of the offender and of others (the victim, society as a whole). It is not at all evident that a child’s participation in a court of law will serve the ends of truth. We need only to remind ourselves of how distressing and intimidating it can be for a child to stand before adults and give testimony, how inappropriate the manner of eliciting information by the means of antagonistic cross-examination is for a child, and how very difficult it can be for a child to recall the past in a consistent and convincing manner.
Even if the child’s appearance in court, appropriately modified in its proceedings, did serve the end of determining the truth there would still be the further question of whether it was appropriate, having made an adjudication of the facts, to punish the child for what it was found she had done.
In fact we need carefully to distinguish three matters. The first is that of guilt and responsibility. The second matter is the disposal of the case: what is a justifiable form or degree of punishment or compulsion in the light of what the child has done? Third, what is a fair procedure for determining guilt and an appropriate disposition?
Procedural fairness in the conduct of any trial or hearing is a prerequisite of a just decision. It must not only be fair to the child (which it was palpably not in the Bulger trial),7 but to all affected parties. The procedures of a juvenile justice system must be regulated by rules that ensure there are proper opportunities for evaluating all the evidence and hearing from all parties (or their representatives) with a legitimate interest in the disposal. The silencing of anyone or failure to acknowledge some salient fact is unfair to the child.
In all three respects – attribution of responsibility, the determination of the disposal, and the decision procedures – we can talk about what is and what is not fair or just to the child and to other relevant parties. It is not thus that in adopting a ‘welfare’ model of juvenile justice fairness is set aside in the service of the child’s needs or well-being. Such a model can be appraised for its fairness or unfairness. Justice is not sacrificed to welfare. Rather attending to the needs of the child may be what justice requires. It is entirely consistent with the approach that recognises the child’s right to protection, her right to participation in matters that affect her, her welfare and the rights of other parties.
There is one last but extremely important respect in which justice features. It is conventional to distinguish between justice within the sphere of the criminal and civil law and distributive or social justice. In the first sphere, as we have seen, principles of fairness regulate the procedures for fixing guilt or innocence and the proportionate determination of penalties or disposals. In the latter, principles of fairness regulate the distribution of social goods such as freedom, wealth and power, and burdens such as taxes. Now although the two sets of principles are often considered separately there are important relations between the two spheres of justice. To take the most obvious: if there is a strong correlation between socio-economic status and criminality, then the worse off may be argued to suffer an unreasonable, and unfair, burden in being legally punished for crimes whose commission is explicable by their poverty. Hence attending to the needs of those children who offend is demanded by justice if their offending is indeed attributable, in some significant measure, to their familial and social problems.
When we turn to child protection we can also see the relevance of considerations of social justice. The emerging approach to child protection – that, for instance, adopted in the recent report, Every Child Matters (Department for Education and Skills 2003) – can be termed ‘holistic’. This means a number of things, including a requirement that the law in respect of the care and upbringing of children is unified and that there be integrated governance in respect of children – that is, the systematic co-ordination of health, educational and child care provision. Of direct relevance to the present discussion, holism means two things. The first, and most important, element of holism is a commitment to the view that child protection must be seen in the context of efforts to promote the general well-being of all children, an acknowledgement that child protection cannot be separated from policies to improve children’s lives as a whole.
The second key element of a holistic approach to child protection is to be found in its characterisation of and response to child abuse and neglect. There is always a danger in this context of speaking in terms of mutually exclusive options when one should instead talk of ideal types. So with this caveat in mind, here are the features of very different approaches to child abuse. One sees abuse in episodic terms, as taking the form of occasional dramatic outbursts of harm or neglect. The opposite approach sees abuse as enduring, sustained, and exemplified in the form of a stable but dysfunctional relationship between a child and her guardian(s). The latter approach is arguably more disposed to see abuse as symptomatic of deeper problems that are not restricted to, though they may obviously include, the psychological characteristics of the child’s guardians.
In terms of how abuse and neglect are treated, one approach seeks to be preventive rather than purely reactive. In other words it tries to identify those circumstances in which abuse is likely to occur and takes steps to forestall the need for intervention after the event. In related terms one approach to child abuse strives to work with the family as a whole, putting in place measures that allow the child to continue living with her guardians free from abuse or neglect. It provides the family with positive support and resources to facilitate this end. By contrast the other approach to abuse intervenes within the family, removing the child or the abusing guardian from the home. It prevents future abuse not so much by addressing its underlying causes as by making it impossible through the physical separation of abuser and abused child.
To repeat, the ‘two’ approaches thus characterised are more properly viewed as ideal types than as mutually exclusive options. In all likelihood child protection practices will be a mixture of both. Furthermore, to avoid gross oversimplification the following should be added. A holistic understanding of what abuse is does not automatically imply a holistic approach to its proper treatment. A child protection system could see a child’s abuse as symptomatic of deeper underlying problems and yet regard the enforced separation of a child from its abuser as the appropriate response of the relevant agencies. Nevertheless the disposition to see abuse as part of a pattern of dysfunctional parenting, which may have broader causes, may well incline child protection organisations to respond with measures that go beyond the simple identification and judicial punishment of the perpetrator. The broader understanding of abuse can recognise that the child’s interests are not best served by viewing her as a victim whose abuser should be locked up.
It should also be evident why a holistic approach to child protection broaches questions of justice. This is because both the protection of children against abuse and the broader promotion of every child’s welfare must necessarily involve general social, economic and political measures that are egalitarian in import. Here too we rejoin the discussion of children’s rights and reacquaint ourselves with the central significance of the CRC. Ensuring that every child enjoys a minimally decent life – which follows from the holistic commitment to improve children’s lives as a whole – is best understood as making certain that every child enjoys the majority of those rights accorded to children in the UNCRC.
If any child is entitled to the enjoyment of some right then all are, equally. Moreover, the UNCRC accords every child a range of fundamental rights. These comprise liberty and welfare rights, the latter including protection rights. The UNCRC does not just accord children some liberty rights but, for instance and crucially, a right ‘to the enjoyment of the highest attainable standard of health’ (Article 24) and ‘to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development’ (Article 27). The guaranteeing of these kinds of rights does have substantial and substantive egalitarian implications. It is clear that very many children do not currently enjoy the second of these welfare rights, and that they fail to do so because of deep, structured inequalities. It needs to be added, not least because it is often forgotten, that many of the children in question live not in the developing world but in developed western societies. They are brought up below the poverty line. A commitment to end child poverty is also a commitment to eradicate the poor circumstances of those adults who rear such children. In sum, a holistic approach to child protection that sets it within the context of a commitment to promote equally the welfare of all children has substantial and substantive egalitarian implications.
In the previous section it was argued that fairness in a juvenile justice system requires us to address the needs of the offending child. We can now recognise that there is a broader requirement of justice that the needs of any child be addressed. The offending child is treated unfairly by a juvenile justice system that does not recognise what it is to be a child offender, and any child is unfairly treated if their needs, as a child, are not recognised.
Two overall conclusions can be drawn. First, the operation of a ‘welfare model’ of juvenile justice within the context of the UNCRC, which ascribes to children a wide range of legally protected rights, does not make the system any less a ‘welfare’ one. Indeed giving children rights is fully consistent with recognition of their special needs and the requirement to promote their best interests. Nevertheless, the tension between the demands of participation and of protection needs to be fully acknowledged.
Second, a welfare model of juvenile justice is not somehow beyond or outside the demands of fairness. On the contrary, such a system’s treatment of young offenders can be fair and proportionate. Moreover, whether it is a child offender or a child in need of protection from abuse or neglect that is in question, it is imperative that their circumstances be examined, and ameliorated, in the light of a broader view of what social justice demands.
1.The term, ‘juvenile justice system’ here refers to institutional arrangements embodied in public law by which the state authorises compulsory intervention either in response to offences committed by minors, or to protect young people from harm or risk of harm, or to meet their welfare needs.
3.Throughout this chapter I deliberately employ both male and female pronouns and possessive terms when denoting unidentified individuals. This is true of both adults and children.
6.The Court also ruled that the British Home Secretary, in raising the original tariff, had violated the right for sentencing to be determined by a court independently of the executive.
7.For more on the Bulger case (1999), see cmiskp.echr.coe.int/tkp197/portal.asp?sessionId=517772&skin=hudoc-en&action=request.
African Charter on the Rights and Welfare of the Child (1990), at www1.umn.edu/humanrts/africa/afchild.htm.
Butler-Sloss, E. (1988) Report of the Enquiry into Child Abuse in Cleveland 1987. London: HMSO.
Department for Education and Skills (2003) Every Child Matters. London: HMSO.
International Covenant on Economic, Social and Cultural Rights (CESCR) (adopted by the United Nations in 1966 and came into force in 1976), see www.unhchr.ch/html/menu3/b/a_cescr.htm.
Kilbrandon, Lord (1964) Report of the Committee on Children and Young Persons, Scotland (Kilbrandon Report), Cmnd 2306. HMSO; republished 1995 with F. Stone, ‘Introduction’, Children in Society Series, Edinburgh: HMSO.
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Lockyer, A. and Stone, F.H. (eds) (1998) Juvenile Justice in Scotland: Twenty-Five Years of the Welfare Approach. London: Butterworths.
MacCormick, N. (2001) ‘A Special Conception of Juvenile Justice: Kilbrandon’s Legacy.’ Fifth Kilbrandon Child Care Lecture, see www.scotland.gov.uk/library5/education/ch30-00.asp.
Mill, J.S. (1848) Principles of Political Economy (Book IV), edited with an Introduction by D. Winch. Harmondsworth: Penguin, 1985.
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