Our member, Louise Forde (Brunel, UK), and her co-editors, Nessa Lynch (Victoria University of Wellington, Australia) and Yannick van den Brink (Leiden University, Netherlands), talk about their edited collection, Serious Offending by Children: Principles, Practice and Global Perspectives (Routledge, 2022).
This volume explores the principles, practice, and challenges in determining justice system responses to serious offending by children globally. Divided into four parts, the book provides a balance of theoretical and empirical insights. Anchored in a theoretical framework based on the human rights of children, as set out in the UN Convention on the Rights of the Child, it considers the relationship between scientific evidence (such as brain development) and the human rights framework, before going to explore the diversity of responses to children who are found responsible for serious offences.
The volume brings together experts from various disciplines to fill a gap relating to serious offending by children in the literature. Scholars from Africa, Latin America and Asia, as well as Europe, North America and Oceania provide perspectives from legally, socially and culturally distinct jurisdictions. As a whole, these contributions highlight the diversity that exists in states’ responses when children commit serious crime and provide valuable insights into the consequences of these choices at a national level.
Ultimately, the book uses the theoretical framework, empirical evidence, and case studies of jurisdictions to reflect on how principles relating to responses to serious offending by children can be translated into practice, and to highlight key debates and issues that will need to be explored into the future.
Globally, the question of how to respond appropriately to children who commit serious offences such as homicide and violent offences raises a number of complex issues. Despite the near-universal ratification of the UN Convention on the Rights of the Child, children who commit serious offences are often subjected to punitive sentences designed for adults and are routinely excluded from the protection of child-specific justice systems. Often, requirements set out in the UNCRC and other international children’s rights standards appear to diminish in importance compared to the perceived need to ensure accountability through punishment and incapacitation.
The catalyst for this collection was the sense that the scholarly literature, the work of advocacy organizations, and the guidance provided by human rights bodies are all relatively light on the principles and measures to be applied in such situations, particularly when compared, for example, to the extensive guidance available for diversionary and restorative practice for less serious offences. This has left somewhat of a vacuum in critique and guidance in which punitive laws and practices continue to flourish.
In light of this, this collection sought to bring together insights from scholars around the world on the relevant principles which should apply, evidence relating to children’s development and offending, and practice examples from a broad range of countries to shed light on this important topic.
This collection explores global penal responses to children who commit serious offences such as homicide and serious violence. Despite significant advances in the understanding of children’s brain development and the near universal ratification of the United Nations Convention on the Rights of the Child (CRC), children around the world continue to be subject to punitive and indeterminate sentences designed for adults. Even in jurisdictions generally regarded as tolerant and principled, children accused of or convicted of serious offences are excluded from some or all of the protections of child justice systems (Van den Brink and Lynch 2021). …
While there is a significant and growing body of scholarship on youth justice generally, and on the theory and practice of children’s rights in youth justice (Hollingsworth 2013, Kilkelly and Liefaard 2019a, Kilkelly and Liefaard, 2019b; Liefaard 2015), less has been written from a children’s rights perspective on responses to children who commit serious offences (Lynch and Liefaard 2020). The focus has largely been on how existing laws and practices have impacted children and their rights. Scholars have identified how punitive sentences such as life imprisonment and life without parole contravene children’s rights (e.g. Mujuzi 2010, O’Brien and Fitz-Gibbon 2016). Capital punishment (e.g. James and Cecil 2003, Linde 2011) is without doubt contrary to human rights standards. Though the CRC does not specifically prohibit life imprisonment or imprisonment for children, there have been regular calls to end life imprisonment and other punitive sentencing options for children (e.g. CRIN 2015, Yates and Ratledge 2019). The United Nations Global Study on Children Deprived of their Liberty (Nowak 2019) has highlighted the impact for children of imprisonment and other forms of detention (cf. O’Brien and Foussard, 2019; Forde and Kilkelly 2019; Goldson and Randazzo 2021). This body of literature and analysis clearly demonstrates the law, policy and practices which are in contravention of children’s rights standards and the impact they have on individual children and groups of children (such as minority and indigenous children Libesman 2007).
In contrast, there is less commentary on implementation and how principles translate into practice, though this issue, too, is now being subject to increased attention. For instance, recent work by Kilkelly and Bergin (2021) advances the thinking on child-centred and rights-based practice in custodial institutions. Grappling with a principled approach also involves consideration of what the public interest is in cases of offending by children and what weight should be placed on public safety (Tisdall, Brown, and Docherty, 1998). Where serious crimes are committed by children, several sets of rights and interests are at stake; not only the interests of the child, but also those of the victims (this term includes close relatives of murder victims) and the wider public interest. The recognition, and balancing, of these interests is well documented in general (adult) criminal justice and sentencing literature (Bassiouni 2006). The children’s rights and human rights framework also recognizes the legitimacy of the interests of victims and the public (UN Committee on the Rights of the Child 2019, para. 76), though this aspect receives remarkably little attention in the child justice literature (Lynch 2018a, 2018b, 2018c, Van den Brink 2019, Van den Brink and Lynch 2021).
This volume builds and expands on earlier publications (Lynch, 2018; Van den Brink and Lynch 2021; Forde, 2018). In previous work, we made preliminary reflections on how penal cultures and legal traditions may influence responses to children who commit homicide. Our motivation in bringing this collection together is our longstanding interest in those children who are excluded from some or all of the protections of the youth justice system. This disparity in the level of protection provided to children in conflict with the law is most acute at the most serious end of the system, for children who commit the most serious crimes and who may be subject to the most severe or punitive response such as indeterminate or long periods of imprisonment. It seems that in some jurisdictions a lenient child justice system for the bulk of (minor) offences can only exist – i.e., is only accepted from a political and societal point of view – by virtue of the possibility to harshly sanction children who commit serious crimes (cf. Asscher et al. 2020, Van den Brink and Lynch 2021). This, however, is at odds with the international children’s framework which demands equal rights protection for all children (cf. Van den Brink 2021a, 2021b). Overall, there is a need for reflection and guidance on what a principled and evidence-based approach to responding to children who commit serious crime might look like. …
Overall, this collection aims to bring a variety of perspectives and outlooks to bear on a relatively under-explored topic in the literature which examines child justice systems from a children’s rights perspective. We hope that the collection – through its examination of the principles and evidence base that relate to responding to serious offending by children and its consideration of the practical approach taken by states to this issue – can provide some new and valuable insights into this topic and provide a catalyst for further discussion about child rights-compliant responses when children commit serious offences.