To What Extent Are Children's Rights Adequately Protected?

INTRODUCTION:

Child welfare is an issue of great concern for modern societies. Child welfare envisages taking care of needs of the child and giving child a holistic treatment that promotes his mental, physical and social development to make him an important member of the society. Child rights seek child welfare and provide rights to child for his overall development, education, nutrition, housing, health and general well being in society. While meeting basic needs of societies, needs of children are often ignored or regarded secondary. This has been realised as a false view of human development.

Children’s rights are defined in numerous ways, including a wide spectrum of civil, cultural, economic, social and political rights. With no clear cut ideological orientation, majority of child welfare and child rights programs have been remedial. Social policy measures must emanate from an informed position of rights of the child and social obligations towards them. Children are dependent on others and the quality of care they receive determines their adulthood. As human beings children constitute a special class with their own rights. From man’s early history rights have been ascribed only to adults. Children have been treated rather paternally and parent and others in authority have continued to control their conduct. Children require special treatment and rights because they are incapable of meeting their needs and lack a clear conception of their interests.

The paternalistic conceptions of rights of children have prevailed with many authors, but they are inadequate for the understanding of how child should be treated, they are one sided and inconclusive. It has been argued, that, children cannot be responsible for their own welfare because by their nature, they lack an adequate conception of their own present future interest (Dworking, 1971). Children lack understanding to make them exercise their will, they should, therefore remain under tutelage of their parents until they are able to make decisions for themselves (Locke, 1952). Hobbes (1965) opines that children have no rights under the ‘social contract’ by which the adults have given their rights to rule to one man who embodies their collective desire and will. According to him, children have no ability to make arrangements other members of the society and cannot understand the implications of such covenants. Rather, they look up to their father as sovereigns. Rawl’s (1972) theory of social justice can be used to establish a framework for the rights of the child. Rawl’s argues that in a just society, individuals will act in such a way that the rights of others are not jeopardized, he asserts that though children are young to take decisions and arrive at guiding principles, but, since they are individuals, hence, the primacy of personal rights pertains to them as well as other members of the society. To respect children by according them rights is to recognise that they possess an inviolability which society cannot override.

The diversity of youth justice systems globally makes it difficult to assess the extent to which children’s rights are observed in youth justice systems. Scholars have critically analysed youth justice systems from the perspective of child rights but they differ in their approaches, emphases, perspectives and thus on the conclusions on the level of compliance being achieved (see Goldson and Muncie, 2006; Muncie, 2006; Muncie and Goldson, 2007).

A range of international instruments contain rights and statements of best practices to be adopted for children in conflict with law situations but child rights may not be adequately protected in youth justice systems and global norms may not be followed for various reasons. This can be aptly observed while analysing the development of youth justice system in UK. In U.K., the 1990’s saw widespread public concern over recurrent offending and reoffending by young offenders, this altered the existing juvenile justice system which was largely based on rehabilitative model. Just deserts approach was introduced for youth justice system by Criminal justice Act, 1991. The juvenile justice system that emerged viewed offender as a rational being with a free will and fully responsible and accountable for his actions. New legislations that followed such as section 53 of the Children and Young Person’s Act, 1993, the Criminal Justice and Public Order Act, 1994 introduced stiffer penalties for juvenile offenders, such as long term detention for 10-13 year olds. Crime and Disorder Act 1998 made children as young as 10 years accountable for their acts and almost abolished the principal of doli incapax according which child under 14 was held incapable of doing evil things. These developments resulted in a substantial rise in punitive responses for offending children, rehabilitative services came to be considered inadequate and ineffective (see Graham and Moore, 2006).

In view of these changes, criminologists argued that juveniles were treated worse in the juvenile justice system than in adult system (Junger-Tas, 2006). A variety of international observers mooted for child rights, protection and care of children in conflict with law situations. It was strongly suggested that too many children are criminalized at too early an age in England and Wales. The UN Committee on the Rights of the Child recommended in 2002 that England and Wales raise the minimum age for criminal responsibility, the European Committee of Social Rights described it as manifestly too low and not in conformity with article 17 of the Social Charter which assures the right of mothers and children to social and economic protection. The Council of Europe’s Commissioner for Human Rights recommended that the UK bring the age of criminal responsibility in all it jurisdictions in line with European norms and that the age at which children who can breach Anti Social Behaviour orders should be raised to 16. (See Allen, 2006; ACPO, 2008; BCT, 2005)

This paper discusses child rights in youth justice systems and discusses, (i) lack of determination of proper age of criminal responsibility below which children are presumed not to have the capacity to infringe the criminal law and (ii) decline of rehabilitative ideal for juveniles in conflict with law situations and lack of awareness about juvenile’s rights, as the reasons for denying satisfactory protection of children’s right in youth justice system.

This paper is divided into four parts, the first part is Introduction, second part discusses child rights in youth justice systems, the third part discusses the interplay between child rights and youth justice system and the steps that have been taken to accord rights to children in conflict with law situations and the fourth part is conclusion.

(II)

Children’s’ rights in context of youth justice systems

Children’s rights include a wide spectrum of civil, cultural, economic, social and political rights. The concern towards child rights including appropriate treatment for juveniles was expressed as early as 1966 in the United Nations International Covenant on Civil and Political Rights. The 1989 United Nations Convention on the Rights of the Child (CRC), ratified by 193 states (with the notable exception of United States and Somalia) is by far the most comprehensive document on the treatment of children.

Principles and articles of the CRC contain child rights. These include rights of survival, development, wellbeing, provision of services, participation in society, rights of protection and care. The rights under the CRC can be categorized as, (a) General rights such as non-discrimination, the best interests of the child being the main consideration, and respect for the views of the child; (b) Civil rights and freedoms, such as a right to an identity, freedom of expression, and protection of privacy; (c) Family environment and alternative care rights such as the right to be cared for by parents, and to an alternative secure form of care such as adoption if deprived of a family (d) Environment, basic health and welfare rights such as the right to health care and to an adequate standard of living; (e) Right to education, leisure, and cultural activities, such as the right to leisure and play; (f) Special protection measures, such as for refugee children, those in the juvenile justice system, and those belonging to a minority group. Rights of child, therefore, seek to ensure, protection, participation, and provision of rights. Rights of protection include the right to be protected from any form of maltreatment or exploitation; the rights of participation enable children to be involved in decisions and actions that affect them and allow them to participate actively in society, they include the right for children to express and have due weight given to views about decisions affecting them, rights of provision include the right to education, and the obligation of the state to support parents and families. The UN convention places the interests of the child first. However, in prioritisation of the rights of children, the UN does not diminish the rights of parents. CRC obliges states to provide parents with the capacity to fulfil their children’s rights, and three of its articles (5, 9, and 18) deal explicitly with the rights of parents (Hodgkin et. al, 2008)

Care and protection of juveniles in conflict with law situations, administration of juvenile justice system, et.al, has received continuous international attention in as many as three detailed instruments of the United Nations, ‘the Riyadh Guidelines’, 1990, ‘the Beijing Rules’, 1985 and ‘the Havana Rules’, 1990 (see United Nations, 1985, 1990a, 1990b). A recent instrument from the United Nations on the issue is the General Comment of the Committee on the Rights of the Child, the expert monitoring body for the implementation of the CRC. The 2007, General Comment No. 10 is a detailed and comprehensive statement of the significant principles and provisions of the CRC on the aspect of youth justice and administration of youth justice with a children’s rights approach.

CRC suggests well-being of the child to be the guiding factor (Article 3 CRC; Beijing Rule 17) and moots for care, probation, guidance, foster care, educational and vocational training to ensure that children are dealt with in a manner appropriate to their well-being and proportionate to their circumstances and offence (Beijing Rule 17). Detention is considered as a measure of last resort (Article 37 CRC). Detention pending trial is suggested to be replaced with alternative measures (Beijing Rule 13), to be imposed in exceptional cases (Havana Rule 1), where the child is adjudicated of serious act involving violence against another person or is persistent offender or where there is no other appropriate response (Beijing Rule 17).

Article 40(3) of the CRC provides that children in conflict with law situations have right to be treated … in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society. Article 40 of the CRC prioritizes reintegration, provides for due process and fair trial rights and the right to privacy. The United Nations Committee on the Rights of the Child (2007: para 23) states that due process for children demands that those working in the trial process – the police, judiciary, lawyers, probation officers and social workers – receive training on a systematic and ongoing basis and the decisions are made without delay and with the involvement of the child’s parents, to ensure child’s best interests (United Nations Committee on the Rights of the Child (2007: para 23g). According to Article 40 (2)(b)(vii) of the CRC, privacy must be respected ‘throughout all stages of the proceedings’ (see also, Beijing Rule 8; United Nations Committee on the Rights of the Child, 2007: para 23l). Article 40(3) of CRC, provides that States must develop measures for dealing with children without resorting to judicial proceedings and that human rights and safeguards must be fully respected. United Nations Committee on the Rights of the Child (2007: paras 11–12; Beijing Rule 11) notes, diversion of children from criminal justice system avoids stigmatization, has good outcomes for children and is cost-effective. Committee recommends that referral to social services should be a ‘well established practice that can and should be used in most cases’

The obligation in Article 37(b) CRC is that ‘[n]o child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time’;

The Convention on the Rights of the Child prioritises the best interests of the child over interests of the society, it declares that children should have priority and it is through prioritizing children that society benefits (United Nations, 1989). Rule 1.4 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, (the Beijing Rules), recommends that child criminal justice should “be conceived as an integral part of the national development process of each country” (United Nations, 1985). States are therefore obliged to ensure that children’s civil, economic, social, and cultural rights in child criminal justice are fully protected, and further, child criminal justice system cannot be placed at the bottom and be least resourced. Convention on the Rights of the Child calls for the establishment of a child-oriented system recognizing child as the holder of rights and freedoms and stressing the need for all actions in child criminal justice to be guided by Article 5 of the Convention, which provides that the best interests of the child should be a primary consideration. The CRC contains four guiding principles which are relevant for children in conflict with law situations they are (i) States are required to establish an age of criminal responsibility below which children are presumed not to have the capacity to infringe the criminal law (ii) non-discrimination in enjoyment of rights (Art. 2); (iii) child’s best interests be a primary consideration in all matters affecting the child (Art. 3); (iv) child’s voice is heard and taken into account in all decision-making concerning the child (Art. 12).

The European Convention on Human Rights (ECHR), protects civil and political rights, such as, the right to a fair trial, the right to express your views, the right to life and the right to privacy, right to be kept safe from torture (Art-3), right to be kept safe from slavery (Art-4), right to be free and secure, right to a fair trial (this includes the right to privacy for children in trouble where the court thinks it is necessary) (Art-6). In Europe, the Council of Europe and the European Union have recommended principles for member states to have youth justice systems compliant with children’s rights and human rights. EU bodies like the European Economic and Social Committee (2006) have adopted guidance on effective responses to youth offending and the Charter of Fundamental Rights, part of the Lisbon Reform Treaty, also makes reference to children’s rights. The European Convention on Human Rights (ECHR) allows individuals to complain about breaches of the Convention to the European Court of Human Rights (ECtHR). The ECHR contains references for children and petition to ECtHR is an effective mechanism which can ensure children’s right in context of fair trial, detention and reintegration. A child-focused justice system can be said to be is the approach of the ECtHR under Article 6 (the fair trial provision). ECtHR recognises the right of children to be tried by a specialized tribunal and to participate effectively in the trial process. Art 3 of the ECHR provides “the right to be kept safe from torture or humiliating treatment”.

(III)

Interplay of Child’s Right and the Youth Justice System

Right of juvenile to be presumed as lacking capacity to infringe criminal law

There has been considerable debate about the age range of the youth justice system. There have been concerns on an inflexible upper age limit at which young people become treated as adults. (Barrow Cadbury 2005; Allen 2006). Article 40(3) of the Commission on Rights of Child requires States to establish an age of criminal responsibility below which children are presumed not to have the capacity to infringe the criminal law. Beijing Rules provide that in fixing the minimum age various factors are to be taken in account such as emotional, mental and intellectual maturity (Beijing Rules, Rule 3.1). The United Nations Committee on the Rights of the Child (2007: paras 16–8), proposes age of 12 years as minimum norm and recommends youth justice system for children under age of 18 years and approves protections up to 21 years (ibid: para 21; see also Beijing Rule 3.3) (see Kilkelly, 2008),

Minimum age of criminal responsibility determines that age at which children should be deemed to have the capacity to form the necessary intention to be criminally culpable. The minimum age of criminal responsibility also determines the extent to which young people should be protected from the consequences of criminal liabilities and criminal proceedings. The minimum age of criminal responsibility in England and Wales is ten. The new Labour government rejected the so called doctrine of doli incapax which raised a presumption that children under the age of 14 years did not know the difference between right and wrong and a conviction could only result if the prosecution proved that they did so, thus, England and Wales now have one of the lowest ages of criminal responsibility in Europe.

Right of children to have a decent minimum age of criminal responsibility is of immense importance and the abolition of doctrine of doli incapax defeats construction of child as different from adult as is recognised by law even elsewhere. This inherent lack of competence of children is well recognised by law under which they are required to attend school till the age of around 16 years, cannot vote, are restricted from drinking alcohol, smoking or engaging in sexual activities. Children are unable to (i) evaluate their actions morally, (ii) anticipate the consequences of their actions and (iii) control their behaviour as adults.

Hollingsworth argues that the right of children to have a well thought out minimum age of criminal responsibility emanates from the two important principles of, responsibility and capacity. Imputing criminal responsibility on the child, means holding the child accountable for his acts and intention, i.e. to hold the child committed the actus reus and had the sufficient mens rea to meet the legal criteria for the offence. The processes conferring responsibility on the child can be seen as fulfilling the four functions of responsibility identified by Cane — ontological, explanatory, evaluative, and normative. When a child pleads or is found guilty this has the effect of allocating ‘ownership’ of that particular offence/event (the ontological function); the trial process or appearance at a youth offender panel requires the child to explain what happened and why, and what needs to be done to prevent future offending (the explanatory function); sanctions may be applied, such as fines or custody, or newer mechanisms of punishment such as reparation (the evaluative function); and the process as a whole helps to define standards of acceptable behaviour (the normative function) (Cane, 2002). Responsibility conferred on the child depends upon the child’s competence or capability. Until the age of 16 the child is presumed to be incompetent and is denied responsibility to make decisions concerning his medical treatment unless he can demonstrate competency to do so. (Hollingsworth, 2007)

Hollingsworth succinctly puts forward the interplay of responsibility and capacity point when she states, on the aspect of capacity, ‘Hart argues that capacity is relevant to the extent that someone may be ‘blameworthy’ (moral responsibility), but this is distinct from the question as to whether or not they are legally liable (legal responsibility). (Hart, 1968: 227)… Responsibility must be conferred before the child can (in a legal sense) make the decision, and the child’s capacity affects whether or not they are given that responsibility in the first place. But where a child is being held legally liable, the action or decision has already been taken by the child (the offence, or the tortious action, has already been committed), and he is then being held responsible in an ex post manner. This may reflect a willingness to hold a child historically answerable for actions already taken, whilst recognizing that in some areas of law (such as medical decision-making) the child needs to be protected from making mistakes by restricting responsibility and denying the child the opportunity to act or make decisions in the first place…Unlike some other areas of law then, at the threshold of the criminal law (the age at which a child becomes criminally responsible) actual competence — or capacity — is irrelevant. The child over ten years of age is deemed capable regardless of whether or not he actually is capable, and the child under ten years of age is presumed to be doli incapax (incapable of evil) again regardless of actual competence. Even the ‘incompetent’ child over ten years, the child who did not understand the consequences of his offending, may be held criminally responsible. .. Until 1998, the presumption of doli incapax extended to those up to the age of 14. Although the age of criminal responsibility was ten, a prosecution could be brought only against a child aged under 14 where the prosecution were able to show that the child was actually competent. In this context, competence was assessed in terms of whether the child knew the action was seriously wrong and not just naughty. However, section 34 of the Crime and Disorder Act 1998 abolished the presumption for those aged 10-14. Now, any attempt to assess a child’s actual competence has been abolished and a child is presumed competent at the age of ten… Although,..the conferral of criminal responsibility on children can be symbolically important. According to Honoré: ‘we should be slow to deny responsibility to those who suffer from incapacity. Though it may be fair … to attach less blame to those who have less capacity to control their actions, and to mitigate their legal liability, to deny people’s responsibility for their actions is to strike at their identity. Honoré (1999: 10)…It justified the abolition (of doli incapax) on the basis that children should be responsible because they do know the difference between right and wrong (that is, that children over the age of ten actually are competent) and that being held responsible will help develop their responsibilities (that is, that they are not yet actually competent). (Home Office, 1997a). But if one analyses more closely the meaning of responsibility…being subject to the criminal law, being held criminally responsible, in Cane’s terms serves an ontological function — allocating ‘ownership’ of conduct and outcomes. Cane describes the ownership function of responsibility mechanisms as contributing to the formation and maintenance of our identities as individuals, and to our sense of being able to influence the course of events, and it is this which Honoré says we should be reluctant to deny any group of people, even those lacking competency. Being subject to the criminal law for a particular event fulfils this function. But once within the system the mechanisms of responsibility shift to being explanatory and evaluative. The skills a child needs to explain his behaviour may well be developed and improved with increased experience and exposure to those mechanisms such as a trial or a youth offender panel. In this way, the child’s responsibility, in the sense of his obligation to explain, is still being developed, even if he already has responsibility in an ontological sense. On the basis of this analysis the Government may not be contradictory. But where the Government does get it wrong is in saying that the child over the age of ten actually does know the difference between right and wrong and hence is responsible… It is justifiable on a conceptual level to distinguish between a child being presumed responsible in order to cross the threshold into the criminal law, thus fulfilling the ontological function of responsibility and giving effect to the child’s autonomy, and then to take account of actual capacity once within the system when looking at responsibility in an explanatory and evaluative sense. This analysis allows a reconciliation in the youth justice system between recognizing the child’s autonomy whilst also taking account of the more vulnerable position of children once they are within the system.’ (Hollingsworth, 2007). Holding of both parents and child both responsible for offence of child may be appropriate when, it is recognised that young children especially at the age of ten are not necessarily actually rational and mature for the acts committed.

Another, important reason for raising the age of criminal responsibility for children is to minimise the negative impact on young minds because of exposure to criminal justice system and processes. Exposure to criminal justice system and processes, prosecution seems to increase the likelihood of re-offending (Kemp et al 2002)

By the last decade of 20th century, the juvenile justice system had become repressive. To meet the criticisms countries started opting for separate juvenile legislations and institutions. In U.K. Section 41 of Crime and Disorder Act 1998 created YJB in the year 1998. Various reforms were also introduced in UK in the past few years to accord child rights to children in conflict with law situations. The reforms included speeding up cases, replacing police cautions with a new Reprimand and Final Warning scheme; introducing new sentences including the Referral Order, Action Plan Order and Detention and Training Order; intensive supervision and surveillance programmes; improvements to the custodial estate; establishment of local multi-agency youth offending teams; and setting up the national Youth Justice Board to oversee delivery of reforms on the ground and commission and purchase secure places for juveniles in conflict with law situations (Home Office, 2003). As a step towards recognising that children are less capable to violate criminal law than adults, Reprimands and Final Warnings was introduced as a concept. Under the regime of Reprimands and Final Warnings, the Young offenders who admit their offence can be dealt with up to twice without going to court. This scheme has played a role in reducing court proceedings for young offenders and protects their rights. The Reprimand and Final Warning Scheme diverts juveniles from court, it is speedy, efficient and has been successful in reducing offending (See Home Office, 2003).

Human rights conventions such as The European Convention apply to ‘persons’ and make no distinction between children and adults. An important issue is whether under such Conventions are children entitled to same rights as adults or limited competence and lower level of capacity of children as compared to adults of children entitles them a separate treatment. Hollingsworth, 2007a, discusses this issue in the light of recent cases ‘in the recent case of Re Roddy ([2004] 2 FLR 949), in Re Roddy, the High Court in England and Wales embarked on a process of reasoning that linked competence to the entitlement to claim some Convention rights — the rights as person. Although the European Convention rights generally relate to autonomy, not all of the rights require a particular level of rationality in order to be able to exercise them — rather, the level of competence or rationality necessary to claim those rights varies. For example, the right to life or the right not to be tortured do not require that the person be rational in order to enjoy the protection that those rights afford. However, other rights, such as freedom of expression or association under Articles 10 and 11, or the Article 8 right to respect for private and family life, are arguably premised on some level of rationality. It is these rights that were the focus of Re Roddy. The case concerned a girl, Angela Roddy, who had given birth to a child when aged 12 and who, at 16, wished to tell her story to the press. To do so, earlier injunctions protecting the identities of Angela, the father of the child and the child (who had by this point been adopted by another family), needed to be lifted. Accordingly, the court had to balance the different rights at stake — the Article 8 rights of the child and the father, the Article 10 freedom of expression right of both the press and Angela, and Angela’s right to waive her Article 8 right. The court held that, generally, a child is as entitled to the protection of the rights under the European Convention as an adult. But, in the case of Articles 8 and 10 the personal autonomy guaranteed by the rights is dependant upon the child’s competency. For example, there may be cases where a child wants to assert an Article 8 or 10 right but which another person — the parents or the courts perhaps — believe is not in the best interest for that child to exercise. Nonetheless, it seems that the power to decide how and when to exercise the rights becomes the child’s where he can demonstrate actual competence (as did Angela Roddy), even though children are prima facie presumed incompetent. Proving actual competence thus becomes the trigger for the conferral of full Convention rights, the rights as person’.

b. Right of juvenile to be rehabilitated, to have knowledge of his rights and to be treated in a manner that ensures his best interest.

The idea behind a juvenile court was that children should be prevented from being treated as criminals (Waters, 1925 at 217-237). As far back in the fourteenth century in England it was recognised that defendants in a criminal justice system must be given an opportunity for meaningful participation in their case otherwise right to trial would be an empty formality (Bonnie et al., 2000). Another important facet of criminal justice system that came to be recognised is that the defendant must be competent to stand trial or must have adjudicative competence (Bonnie et al., 2000). Adjudicative competence or Competence to stand trial means that the defendant must have a rational and factual understanding of the proceedings against him, the ability to consult with counsel, render assistance in preparation of defence. Adjudicative competence serves at least three important interests, first it ensures that defendants are able to assist in their defence, which helps in accurate adjudication. An incompetent defendant may not, for example, be able to direct his attorney to relevant witness. Second, it increases the likelihood of informed decisions by defendant (e.g. whether to accept plea bargaining). Third it preserves dignity of criminal justice process by ensuring that defendants have a moral understanding of the purposes of proceedings against them (Redding et al., 2003)

In the 1960s the U.S. Supreme Court extended due process rights to juveniles (Kent v. U.S. (1966)), which meant, like an adult trial the juvenile justice system also imbibed the principles of just dessert, proportionality and equality in a process to achieve a fairer and more just sentencing policy, right of juveniles have