I INTRODUCTION | II “CHILDREN”, “YOUNG PEOPLE” AND “JUVENILES” | III KEY PRINCIPLES FOR DEALING WITH CHILD OFFENDERS | IV A PRINCIPLED APPROACH TO CHILDREN IN CONFLICT WITH THE LAW | V ASKING THE HARD QUESTIONS | VI CONCLUSION | APPENDIX

I INTRODUCTION [1]

B Goldson in “The Demonisation of Children: From the Symbolic to the Institutional” [2]

Children who offend pose a peculiar challenge to every criminal justice system. Children may commit “adult” crimes but their immaturity and lack of understanding mean that they cannot be dealt with as “small adults”. They are different for a number of reasons. Firstly, childhood is typified by risk-taking and impulsive behaviour. To some extent this is a necessary part of maturation but unfortunately it manifests itself in unwise and reckless acts that may bring a child to the attention of the authorities. Secondly, children do not have the same developmental level of cognitive or psychological maturity as adults.[3] They are more vulnerable to provocation, duress or threatening behaviour and are particularly influenced by peer approval and fear or rejection.[4] Thirdly, offending by young people is often symptomatic of care and protection issues to which a purely justice response is destructive and unjust. Attempting to unravel and deal with justice and welfare issues within a traditional, adversarial Court setting is very difficult.

These factors interpret child offending as a consequence of vulnerability, immaturity and “disadvantage” but public perceptions are more likely to perceive child offenders as threatening or dangerous “yobs” and favour a “get tough” approach to child crime. It is this “curious ambivalence” that gives rise to many of the difficult questions surrounding child and youth justice. To what extent should the criminal justice system take account of, and respond to, welfare needs and how should accountability be achieved? Solutions for these difficult children are elusive. Nevertheless, a principled and proportionate approach is vital because a test of a country’s civilisation and social maturity can be determined by the way it deals with children who break the law.

In enquiring into the correct response to young people we should beware of a supposed “golden age”, now past, when children did not push boundaries and come into conflict with their elders. In 1884 a New Zealand newspaper reported: “There are a number of children running about the streets of Dunedin … without the control of parents. If the government does not take them in hand ... they will become ... members of a criminal class.”[5] Children have always posed a challenge to their communities.

Certainly every generation has its particular challenges in dealing with children, and particularly with those who break the law. Research in New Zealand, and most of the Western world indicates that all children break the law at least once between the ages of 10 and 18. Despite this, few come to the attention of the law enforcement authorities and fewer still, about 2%, require formal intervention. And the vast majority of child offenders do not pose a long-term threat to the public. Around 80% are “Desisters”[6] - those that commit at least one crime, but usually start offending after 13 years and stop or age out of offending by age 24 to 28 years.[7] It is, in fact, the 5% to 15% of child offenders described as “Persisters”[8] who are the real challenge for the justice system. These young people tend to come from deprived and abusive backgrounds, start offending before the age of 14 and are likely to become career criminals.

Rather than succumb to simplistic public pressure to “get tough”, child and youth justice systems must take as their foundation the principles that uphold the rights of children and young people and develop systems that are qualitatively different to their adult criminal justice counterparts. The 1989 United Nations Convention on the Rights of the Child (“UNCROC”) is the starting point for such a principled approach and the foundation upon which a delicate balance between trial and treatment can be achieved.

Footnotes

1 Paper produced by His Honour Judge A J Becroft, Principal Youth Court Judge of New Zealand and written by Rhonda Thompson (BBS, LLB(Hons)), Research Counsel to the Principal Youth Court Judge. This paper draws heavily on three previous papers by Judge A J Becroft: 1.Trial and Treatment of Youth Offenders: Human Rights at the Coalface of Youth Justice, Commonwealth Law Conference, London, September, 2005; 2. A Report Card on How Our Legal Systems Deal with the Inter-Relationship Between Child Protection and Youth Crime, AIJA Youth Justice Child Protection Conference, Hobart, Tasmania, April 2006; 3. Time to Teach the Old Dog New Tricks: What the Adult Courts Can Learn About Sentencing and Imprisonment from the Youth Court, Prison Fellowship "Beyond Retribution - Advancing the Law and Order Debate" Conference, Upper Hutt, New Zealand, May 2006.

2 B Goldson, The Demonisation of Children: From the Symbolic to the Institutional" quoted in J Fionda, Devils and Angels: Youth Policy and Crime (Hart Publishing, Oregon, 2005) 26.

3 Steinberg & Scott (2003) quoted in Dr Ian Lambie (2006) The Negative Impacts on Juvenile Offenders Incarcerated in Adult Prisons, paper in draft at time of going to press.

4 Moffitt (1993) Adolescent-Limited and Life-Course Persistent Antisocial Behaviour: A Developmental Taxonomy, Psychological Review 100(4): 674-701.

5 Otago Daily Times, New Zealand, 1884.

6 Moffitt T E, Adolescence-Limited and Life-Course Persistent Antisocial Behaviour: A Developmental Taxonomy, n 4.

7 Moffitt T E (1996) Adolescence-Limited and Life-Course Persistent Offending: A Complementary Pair of Developmental Theories, quoted in K L McLaren, Tough is Not Enough - Getting Smart about Youth Crime, 16, available at http://www.myd.govt.nz/Publications/Justice/toughisnotenough-gettingsmartabout.aspx (last accessed 7 August 2006) explained further in Question 7 in this paper.

8 Moffitt T E (1996) Adolescence-Limited and Life-Course Persistent Offending: A Complementary Pair of Developmental Theories, n 7, 16.