It’s not child-friendly to make children criminals 

Peter Newell, Coordinator, Global Initiative to End All Corporal Punishment of Children and member CRIN’s Council

The proposition in CRIN’s long paper is simple: that criminalising children is not child-friendly, and more significantly that it is in conflict with the Convention, which covers everyone below the age of 18. To suggest that states should define an age, within childhood, at which children can be criminalised is inevitably discriminatory in violation of Article 2. It conflicts with the Convention’s requirement that the child’s best interests must be a primary consideration and with the child’s right to maximum development. And Article 40 requires that states must promote the establishment of laws, procedures, authorities and institutions specifically applicable to children in conflict with the law – not to some but to all of them up to 18.

Surely the children’s rights community now owes children uncompromising advocacy with clear goals that include ending their criminalization and ending the use of detention as punishment? None of us believes these goals are going to be achieved easily or quickly, but without principled and fully rights-compliant targets, progress will not be made: a global campaign needs a clear foundation.

Even during the drafting process of the Convention, in the late 1980s, some UN agencies and NGOs tried to argue that there is no place for retribution in juvenile justice. But in the end the arguments were about trying to rule out sentences of life imprisonment for children rather than only life imprisonment without possibility of release – and even that argument was lost in the interests of consensus. Are there really human beings who still believe that sentencing a child to life is not inhuman treatment?

In 2007, in its General Comment No 10 on children’s rights in juvenile justice, the Committee had another go at removing retribution, quoting best interests.

Many organisations and individuals here, and some – a minority I fear – of states are of course working in the right direction, and have been doing so for many years, promoting the raising of minimum ages and more diversion and restorative justice. But too often these approaches are seen as compatible with ongoing criminalisation and unjustifiable detention, still contain sops to retribution; for example allowing victims to veto the application of restorative justice, or deserting rehabilitation and re-integration when children commit the most serious crimes and are therefore most in need of this, for their best interests and those of their societies.

Criminalising children encourages them to spiral down into more and more violent offending: there is plenty of evidence of that, but it certainly needs collecting together and disseminating ever more effectively. Maintaining primarily punitive, retributive systems for children in conflict with the law prevents societies moving on; it upholds beliefs in original sin and the need to beat the devil out of children. And it reflects another primitive emotion – fear and hatred of the next generation, holding them absurdly to blame for current ills.

Freedom of religion suggests we can’t stop people believing in original sin, but this adult freedom cannot extend to justifying violence, including retributive approaches to childhood offending, any more than a belief in witches or evil spirits can justify branding children as witches or possessed. It’s easy and remains popular to stigmatise in extreme terms “bad” children: in my country and many others. Ault commitment to punitive responses to children runs deep, nurtured by the assertion of original sin and legal acceptance of violent punishment – “for the purpose of correcting what is evil in the child”: the words of the Chief Justice of England in a still quoted 1860 leading judgment in English common law, justifying “reasonable chastisement”.

Over recent decades the horrifying prevalence of legalised violent punishment, most commonly in children’s homes, has become visible and has been recognised as a rights violation by international and regional human rights systems; simultaneously research into its very harmful impact on children has accumulated. And there is real progress now towards prohibition and elimination, as Paulo noted – almost half the world’s states either with a complete ban or publicly committed to one.

Promoting bans on violent punishment of children – particularly within the family – starts as unpopular as promoting non-punitive and non-violent justice systems for children; it runs against social norms and does not win votes. In going ahead with banning, governments have been persuaded to accept human rights obligations, listen to research and to professional views and lead public opinion. The universal prohibition and elimination of legalised violent punishment of children, in private and public settings, is now in sight. For this, much credit should be given to the clear and uncompromising leadership of the Committee on the Rights of the Child and the pioneering of one or two States, primarily Sweden. Paulo’s rights-based UN Study into violence against children built on the Committee’s work with his priority recommendation that all violence – including explicitly all corporal punishment – should be prohibited.

Progress in challenging violent punishment of children has come from making visible the practice and the harm it does and from systematically building a human rights consensus for prohibition and elimination. A similar organised approach is needed now to challenge the violence inherent in states’ criminalisation of children and locking up children as a punishment. The reality and harmful impact of existing penal systems for children need to be communicated ever more clearly; also the evidence that the roots of almost all serious child offending lie in adult or state violence and neglect. The more serious and extreme the offending, the more confident we can be of its origins in adult or state maltreatment (or sometimes simply tragic loss).

The core of the proposal in CRIN’s paper is to separate the concepts of responsibility and criminalisation and to focus exclusively, not half-heartedly, on rehabilitation, rejecting absolutely any place for retribution. “Responsibility” is not a negative concept, and it does not serve our purpose as advocates of children’s human rights to deny their immediate responsibility, to belittle their evolving capacities. The basic assertion: that we must separate “responsibility” from “criminalisation”, discard retribution altogether and focus exclusively on rehabilitation has attracted strong and authoritative support, as Paulo quoted, and there is more detail in CRIN’s paper.

One other significant indication of support for not criminalising children is in the Rome Statute establishing the International Criminal Court; Article 26 excludes all people under 18 from its jurisdiction. Keeping under-18s out of the criminal system does not mean that young people who commit offences avoid “justice” or that nothing is done about their offending. Nor, as some have argued, does denying children a place in the criminal justice system deny them due process or encourage innocent children to accept compulsory interventions and treatment that are as heavy and destructive as penal sanctions.

Due process is not unique to criminal proceedings. It can be provided in any sort of proceedings – and article 40 of the CRC requires it. So the proceedings which will remain necessary to determine “responsibility”, and other proceedings necessary to authorise responsive action to achieve rehabilitation, prevention of future offending and possible reparation must also respect due process rights.

Others suggest that if under 18s are removed from the criminal justice system, more of them will be coerced or bribed into carrying out serious criminal activities on behalf of adult criminals. These are real concerns – but surely the response to this exploitation, which is anyway already possible whatever the age of criminal responsibility – is to step up the penalties for those adults who pursue it? These seem relatively simple arguments to counter: no doubt there are others which will be aired today and as the debate CRIN wants continues. There is certainly lots of detail that needs addressing, about the design and practice of proceedings that are genuinely appropriate to the capacity of the children concerned, about the new positive, not repressive, roles for many of those working in punitive systems now.

The negotiation of the CRC was generally a triumph for children’s rights, but the now 25 year-old text inevitably includes elements of compromise, including when it addresses juvenile justice. We look to the Committee on the Rights of the Child to assert that it is a living instrument, demanding ongoing and progressive interpretation. In most cases the Committee has fulfilled or exceeded our expectations. In its General Comment No. 10 it emphasises that it has recommended States not to set a minimum age at too low a level and to increase it to an internationally acceptable level. It then states that a minimum age below 12 is considered by the Committee not to be internationally acceptable. States are encouraged to increase their lower minimum age to 12 as the “absolute minimum” and to continue to increase it. The Committee urges States not to lower their minimum age to 12…”.

But however carefully phrased, this statement has done real damage: 12, shockingly, has become a sort of respectable norm, and some states have misused this in grotesquely lowering their ages. The assertion that 12 is “internationally acceptable” was arrived at by working out the average of known fixed ages: surely it is not the role of the Committee to accept an “average” approach to children’s rights? Surely by now there has been sufficient misuse of the Committee’s words by governments and others arguing to lower the age towards 12, or not to raise it above 12, to justify the Committee in revisiting this part of the General Comment? There has been discussion of this within the Committee. If the CRC is to be a living instrument, General Comments must not be set in stone.

Twenty minutes is not of course nearly enough to engage with the detail of how a system which genuinely stops criminalising children up to 18 would work. The longer paper – which I do hope some of you will take time to engage with – outlines at least briefly how it could work, taking a globally notorious case – the murder of two year-old James Bulger by two 10 year olds in the UK in 1993. Echoes of the retributive fury that was generated by those boys’ awful actions, fuelled by the judge’s scandalous naming of them, continue to delay rational reform.

I have mentioned, and CRIN is documenting, regressive moves to lower minimum ages. The other related regression is the trend in some States to lock up more children and at younger ages. A 2013 report from UN agencies estimates that at least 1 million children are deprived of their liberty worldwide, and that is probably an underestimate. The research shows that the majority of detained children are awaiting trial, a large proportion of these children are held for minor offences, are first-time offenders. I quote: “Violence at home, poverty, structural violence and risky survival activities propel children into the juvenile justice system, and detention in the criminal justice system is often used as a substitute for referral to child care and protection institutions.”

All this plainly conflicts with the Convention’s obligations. Article 37 requires deprivation of liberty to be used “only as a measure of last resort and for the shortest appropriate time”. Regrettably, there are some weasel words: “a last resort” seems to leave plenty of room for punitive, retributive responses by legislators and judges. And “appropriate” can be and is interpreted as making the punishment fit the crime, maintaining “proportionate” approaches to sentencing. Even the 2013 report I just quoted seems to imply that it is more OK to lock up children as punishment for serious offences than trivial ones. But here too, regarding the Convention as a living instrument, there is surely room now for very strictly tightening the conditions for any restriction of liberty in line with the child’s best interests, maximum development etc. Not enough has been made of the clear prohibition in article 9 on separating a child from his or her parents against their will unless such separation is “necessary for the best interests of the child”.

There is also the insistence in Article 37, that any child deprived of liberty has the right to prompt access to legal and other assistance, and the right to challenge the deprivation of liberty before a court or other independent authority…”. Hopefully, the proposed new UN Study on restriction of liberty will look carefully at all non-penal locking up of children; in many states children are having their liberty restricted – being locked up – in a wide variety of sectors and institutions, without any right to judicial challenge. In a system which rejects retribution, the only justification for locking up children can be that they pose an assessed serious risk to others’ safety and other ways of minimising this risk are considered inadequate. We have to accept that there are a small number of children who fall into this category, at least for short periods.

As Paulo said, his World Report on Violence against Children urged governments “to ensure that detention is only used for child offenders who are assessed as posing a real danger to others, and then only as a last resort, for the shortest necessary time, and following judicial hearing…”.

Isn’t it arguable that any child who poses such a serious risk to public safety that their liberty may be justifiably restricted for a period, is suffering from mental health issues and should be detained and treated, for the shortest possible time, in health/mental health settings, certainly not penal settings? Mental health detention is often currently misused, with too few legal safeguards. Analysing all detention of children must include analysis of mental health detention. We must hope that the new UN study will both provide an accurate picture of all detained children, including those currently in mental health settings and revealing how and why they are detained,. But above all, we must ensure it is uncompromising in defining the very limited justification for detaining children at all. Hopefully, it will also challenge the trend by states to privatise child detention, adding a profit motive to all the other awful motives for locking up more children.

I recently saw a 2013 UK Ministry of Justice report, ironically titled “Transforming Youth Custody”: this records the re-offending rate from the three types of institution which make up what is euphemistically called the “youth secure estate”, as 70%, 73% and 76%. And locking up these children is not a matter of economy: each placement costs on average between £65,000 and £212,000 a year, compared with £33,000 a year for the UK Prime Minister’s elite private boarding school, Eton College. The report also documents some of the characteristics of the children who find themselves locked up in these UK institutions; for example: half of the 15-17 year olds entering custody had literacy levels equivalent to that expected of 7-11 year olds; 18% of those in custody had been assessed as having special educational needs compared to 3% in the general population; 27% of 15-17 year old young men in custody felt they had emotional or mental health problems; about 20 per cent of the young people sentenced to custody had self-harmed at some point in their lives (compared to 7% generally); around a tenth had tried to commit suicide. 76% have an absent father and 33% an absent mother; 39% had been on the child protection register or experienced abuse or neglect.

The fact is that “justice” for the overwhelming majority of children currently criminalised including those locked up should involve not simply rehabilitation and re-integration, but compensation for the wrongs done to them by families and then too often compounded by the state.

We can and must do better, and setting principled, rights-compliant goals is surely an essential start.

(A version of this paper, originally prepared for CRIN, will appear in Child-Friendly Justice – a Quarter of A Century with the UN Convention on the Rights of the Child, to be published by Martinus Nijhoff Publishers, Leiden; should be available by July 2015. peter@endcorporalpunishment.org

** This Speech was made at the ongoing Juvenile World Congress in Geneva, Switzerland by Mr. Peter Newell. The World Congress on Juvenile Justice began from 26th January, 2015 and will commence on 30th January, 2015.