Children’s Rights and Juvenile Justice

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.

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.

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).

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

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.

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.

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 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?

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.

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.

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.

Conclusions

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.

Notes