Toolkit on Diversion and Alternatives to Detention

Child Development and Psychology

B. Child development & psychology

• Introduction
• 1. Should children be in the criminal justice system in the first place?
• 2. If children do need to be in the criminal justice system, how does their developmental status impact on how they should be treated within the system?
• Risk factors
• Summary
 
Introduction
Section A has shown how the rights of children in conflict with the law relating to diversion and alternatives have been enshrined in international human rights instruments. This fact alone is enough reason to promote diversion and alternatives in the reform of justice for children in conflict with the law. In addition to this, however, there are many other reasons why diversion and alternatives are important. This section outlines some key principles of child development and child psychology - an understanding of which has led to the development of the afore-mentioned rights in the first place.

The CRC Preamble reminds us that “in the Universal Declaration of Human Rights, the United Nations has proclaimed that childhood is entitled to special care and assistance” and “as indicated in the Declaration of the Rights of the Child, ‘the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.’” This section aims to outline why childhood is entitled to ‘special care, assistance and safeguards’ in relation to ‘physical and mental immaturity’ and the significance of this in relation to diversion and alternatives.

The fact that children in conflict with the law are in a special stage of development has two major ramifications for the criminal justice system:
     1. Should they be there in the first place? (prevention, minimum age of criminal responsibility, decriminalisation of status offences and exploitation, and diversion);
     2.  If they do need to be in the criminal justice system, how does their developmental status impact on how they should be treated within the system? (need for a separate system from adults, specialised personnel, restorative rather than retributive justice, and alternatives to detention).

A summary of risk factors that bring children into conflict with the law is provided below. 

1. Should children be in the criminal justice system in the first place?

1a. Prevention
Although this toolkit focuses on diversion and alternatives to detention, it is worth reiterating that an essential element for reform should be much greater investment in prevention programmes to stop children coming into conflict with the law in the first place.[1] The Committee on the Rights of the Child links this clearly to CRC Article 6 (the right to life, survival and development): “This inherent right of every child should guide and inspire States parties in the development of effective national policies and programmes for the prevention of juvenile delinquency, because it goes without saying that delinquency has a very negative impact on the child’s development”.[2] If prevention is too late then the other issues listed here below unfortunately become necessary.

1b. Minimum age of criminal responsibility
The Beijing Rules state that the age of criminal responsibility “shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity”. [3] There is ongoing debate on this issue internationally about the actual age at which this should be set, the details of which are beyond the scope of the current toolkit, but there is nonetheless general agreement that children can only be held accountable for criminal behaviour if they can “live up to the moral and psychological components of criminal responsibility; that is, whether a child, by virtue of her or his individual discernment and understanding, can be held responsible for essentially antisocial behaviour”.[4] Children who fall below the minimum age, or who are deemed by virtue of their individual developmental level to be incapable of discerning right from wrong, cannot be processed through the criminal justice system and therefore need to benefit instead from social welfare responses. The Committee on the Rights of the Child General Comment No. 10 (2007) on ‘Children’s rights in juvenile justice’ states that “a minimum age of criminal responsibility below the age of 12 years is considered by the Committee not to be internationally acceptable. States parties are encouraged to increase their lower MACR to the age of 12 years as the absolute minimum age and to continue to increase it to a higher age level” (paragraph 32).

Download the 2004 publication 'At what age?…are school-children employed, married and taken to court?' (includes comparative table of countries showing minimum ages of criminal responsibility)

1c. Decriminalisation of ‘status offences’ and exploitation
‘Status offences’ refer to behaviour considered criminal only when the person committing it is under the age of 18 (i.e. it is an ‘offence’ due to their ‘status’ as a child). Typical status offences include truancy, running away from home, being out after dark or being ‘beyond parental control’. It is in this domain that many countries, often linked to so-called ‘security agendas’, are implementing increasingly expansive and repressive legislation and policy to criminalise behaviour in children which would be more effectively dealt with through a social welfare response. In terms of child development and psychology, the criminalisation of such behaviour is of great concern, especially given that “youthful behaviour or conduct that does not conform to overall social norms and values is often part of the maturation and growth process and tends to disappear spontaneously in most individuals with the transition to adulthood”.[5] The international child rights community, including UNICEF, is therefore calling for an immediate decriminalisation of status offences and children being commercially sexually exploited so that such children do not unnecessarily come into contact with the criminal justice system.

1d. Diversion
Contact with the formal criminal justice system can have a negative impact on children’s development and, where possible, especially for first-time and minor offences, this should be avoided: “Involvement in juvenile justice processes in itself can be ‘harmful’ to juveniles”.[6]Theoretically, where the justice system complies completely with international standards, it could play a constructive role in the life of a child in conflict with the law, for example by enabling them to access the support and guidance they need in order to address problems at the root of offending behaviour. Indeed, in some cases, diversion may not be appropriate or in the best interests of the child. (For example, persistent offenders who have already experienced diversion in the past, but which has failed to address the offending behaviour, may require formal judicial intervention to help them get back on track). Diversion is also not appropriate for children who do not admit responsibility for an offence. However, in reality, the majority of many justice systems do not comply fully with international standards. Elements of the ‘negative’ impact of contact with the justice system include:

     • Stigmatisation and ‘labelling’: for example, “Young persons are particularly susceptible to stigmatization. Criminological research into labelling processes has provided evidence of the detrimental effects (of different kinds) resulting from the permanent identification of young persons as ‘delinquent’ or ‘criminal.’”[7] “[I]n the predominant opinion of experts, labelling a young person as ‘deviant’, ‘delinquent’ or ‘pre-delinquent’ often contributes to the development of a consistent pattern of undesirable behaviour by young persons.”[8] “Children who have been in contact with the system, but also their families, may be stigmatised for life as ‘criminals’, even when their case was dismissed because of lack of evidence or because their innocence was proven. Stigmatisation may imply reduced access to learning and living opportunities or even the denial of access. The school, but even the family and the parents may refuse to take the child back. Adolescents may not be able to find a fully-fledged job, employers being reluctant to hire ‘young criminals.’ Re-offending may provide for those young people the only escape.”[9] The issue of stigmatisation and labelling applies even when attempts have been made to make formal processes 'child-friendly'. Diverting children away from the formal system where possible can help to avoid this stigmatisation and labelling and is therefore better for children’s development.
     • Most formal justice systems are retributive rather than restorative: According to the Committee on the Rights of the Child, “The protection of the best interests of the child means, for instance, that the traditional objectives of criminal justice, such as repression / retribution, must give way to rehabilitation and restorative justice objectives in dealing with child offenders” as “children differ from adults in their physical and psychological development, and their emotional and educational needs”.[10] Diversion from judicial proceedings is an important component of international standards and often entails restorative justice approaches which are much more beneficial to children’s development than repressive approaches. Restorative approaches support children’s cognitive, emotional, physical, social and moral development by, for example, providing them with an opportunity to take responsibility for their actions and participate actively in the process; by maintaining them as full-fledged members of their community and by reducing the risk of exposure to violence (e.g. in detention).
     • Overuse of detention at pre-trial and sentencing / disposition stages: It is unfortunately highly likely that a child in conflict with the law who ends up in the formal criminal justice system – especially a child who is poor – will find him/herself in detention at some stage. Contact with the formal system in general is considered in many cases to be detrimental to children’s development; detention even more so: “The use of deprivation of liberty has very negative consequences for the child’s harmonious development and seriously hampers his/her reintegration in society”.[11] As mentioned in other parts of the toolkit, children deprived of liberty often run a risk of being exposed to violence and deprivation of their rights, such as education, highest attainable standard of health, rest or contact with their family – all of which are necessary elements in their cognitive, emotional, physical, social and moral development. Diversion away from judicial proceedings (and alternatives to deprivation of liberty - see point 2d below) avoid the child having to experience detention and are therefore more likely to be beneficial to the child’s development, when applied in keeping with legal safeguards.
Another benefit of diversion is that rehabilitative work with the child can begin immediately, rather than having to wait for the often lengthy trial period to be over.
 
2. If children do need to be in the criminal justice system, how does their developmental status impact on how they should be treated within the system?

2a. Separate system for children
If prevention is not possible, then children in conflict with the law will unfortunately end up in the criminal justice system. In order to reduce as much as possible the negative impact this will have on their development, “Efforts shall be made to establish, in each national jurisdiction, a set of laws, rules and provisions specifically applicable to juvenile offenders and institutions and bodies entrusted with the functions of the administration of juvenile justice and designed: (a) To meet the varying needs of juvenile offenders, while protecting their basic rights; (b) To meet the need of society.”[12] The establishment of a system which is specific to children in conflict with the law acknowledges that they require treatment which is different to adults, on account on their special developmental status. There are a multitude of detailed guidelines on what a child-specific system should look like which have been developed with principles of child development specifically in mind. They include things like the need for specialised and trained professionals, child-sensitive procedures and court rooms, protection of privacy in relation to media reporting, and they especially emphasise the need for diversion, alternatives to detention and restorative justice approaches (where possible and appropriate) which are the focus of this toolkit.[13] [See the toolkit section on 'what is the criminal justice system?' for a broader overview].

2b. Specialised personnel
The Committee on the Rights of the Child, elaborating on Article 40.1 of the CRC, notes: “Treatment that takes into account the child’s age and promotes the child’s reintegration and the child’s assuming a constructive role in society. This principle must be applied, observed and respected throughout the entire process of dealing with the child, from the first contact with law enforcement agencies all the way to the implementation of all measures for dealing with the child. It requires that all professionals involved in the administration of juvenile justice be knowledgeable about child development, the dynamic and continuing growth of children, what is appropriate to their well-being, and the pervasive forms of violence against children.”[14] This is an indication of how essential an understanding of child development is to devising and implementing child rights-based justice systems. At least a basic understanding of child development and psychology will greatly enhance stakeholder acceptance and ‘buy-in’ for diversion and alternatives which play such a key role in child rights-based, restorative justice systems.

2c. Restorative rather than retributive justice
It has previously been mentioned that the traditionally retributive or punitive justice approach of many formal justice systems is a key reason why children should be diverted out of judicial proceedings in the first place, if at all possible. However, for those children for whom diversion is not possible or appropriate, there is an obligation to reform judicial proceedings to make them as responsive as possible to children’s development: “this basic right [to life, survival and development] should result in a policy of responding to juvenile delinquency in ways that support the child’s development.”[15] Because it provides children with an opportunity to take responsibility for their actions and to participate actively in the process, maintains them as full-fledged members of their community and reduces the risk of exposure to violence, restorative justice is an approach which responds well to this need and, as seen elsewhere in this toolkit, can overlap very neatly with diversion and alternatives. [See the toolkit section on definition and discussion of restorative justice for more details].

2d. Least possible use of detention
"UNICEF estimates that more than 1 million children are detained through justice systems worldwide at any one time,[16] although this is likely to be a significant underestimate given the difficulties in obtaining data about the many unreported children in custody."[17] Overuse of detention has also been cited as a reason to divert children away from judicial proceedings as much as possible. However, if diversion is not possible and the child must pass through judicial proceedings, then alternatives to detention become the next most important priority to ensure that children’s positive development is safeguarded as much as possible: “Full respect for the rights of the child is proven to be difficult within every closed institution, and a placement there does not often contribute to a successful social reintegration.”[18]  “Progressive criminology advocates the use of non-institutional over institutional treatment. Little or no difference has been found in terms of the success of institutionalization as compared to non-institutionalization. The many adverse influences on an individual that seem unavoidable within any institutional setting evidently cannot be outbalanced by treatment efforts. This is especially the case for juveniles, who are vulnerable to negative influences. Moreover, the negative effects, not only of loss of liberty but also of separation from the usual social environment, are certainly more acute for juveniles than for adults because of their early stage of development.”[19]

Risk factors
The powerpoint presentation here gives a simple explanation of risk factors bringing children into conflict with the law, with lists of examples categorized into: individual, family, school, peer group and community. [However, this should be considered alongside 'resiliency factors' which are covered in the document attached after the summary ('Learn more about basic child development and psychology')].

Risk factors for crime, Tamburai Muchinguri, Malawi [Ppt, 76kb] 
 
Summary
Coming into conflict with the law in the first place and subsequently coming into contact with the formal criminal justice system is generally acknowledged to be detrimental to children’s development. Efforts must therefore be made to prevent this through: programmes to prevent children coming into conflict with the law; setting of a relatively high age minimum age of criminal responsibility and ensuring treatment in line with international standards both above and below this age; decriminalisation of status offences and exploitation; and diversion away from judicial proceedings. Where contact with the formal justice system is unavoidable, there needs to be a specialised justice system for children in conflict with the law which is different to that for adults and which takes into account their special developmental status. Such measures include the recruitment and training of specialised personnel, the promotion of restorative rather than retributive justice approaches and alternatives to detention. In this way it can be seen that diversion and alternatives are essential elements of a child rights-based justice system which aims to minimise negative impacts and maximise opportunities for positive input into children’s development.
A basic understanding of child development and psychology is essential for stakeholders to be able to understand and accept the importance of diversion and alternatives for children in conflict with the law and to then actively promote and effectively apply them in practice.

Learn more about basic child development and psychology  

Footnotes:

1. "The prevention of juvenile delinquency is an essential part of crime prevention in society" Riyadh Guidelines #1; "A comprehensive policy for juvenile justice must deal with the following core elements: the prevention of juvenile delinquency; interventions without resorting to judicial proceedings and interventions in the context of judicial proceedings; the minimum age of criminal responsibility and the upper age-limits for juvenile justice; the guarantees for a fair trial; and deprivation of liberty including pretrial detention and post-trial incarceration" (Committee on the Rights of the Child General Comment 10, paragraph 15); "a juvenile justice policy without a set of measures aimed at preventing juvenile delinquency suffers from serious shortcomings" (Committee on the Rights of the Child General Comment 10, paragraph 17).
2. Committee on the Rights of the Child, General Comment 10, paragraph 11.
3. Beijing Rule 4.1.
4. Commentary to Beijing Rule 4.1.
5. Riyadh Guidelines 5(e). See also Riyadh Guideline 5 in general which sates: “The need for and importance of progressive delinquency prevention policies and the systematic study and the elaboration of measures should be recognized. These should avoid criminalizing and penalizing a child for behaviour that does not cause serious damage to the development of the child or harm to others.” 
6. Commentary to Beijing Rule 10.3.
7. Commentary to Beijing Rule 8.
8. Riyadh Guidelines 5(f).
9. Cantwell, N. and Cappelaere, G., UNICEF’s Child Protection Approach in the sphere of Juvenile Justice - A proposed outline, 2001, p.9. [Internal document - not for circulation].
10. Committee on the Rights of the Child, General Comment 10, paragraph 10. [It must be acknowledged that a restorative justice approach can also greatly benefit adult offenders as well, and there are a great number of efforts underway internationally to reform adult criminal justice systems to reduce reliance on repressive / retributive approaches, including a reduction in the use of detention. For the purposes of this toolkit, however, the focus is particularly on children in conflict with the law for whom such reforms are even more pertinent and urgent due to the developmental and psychological reasons set out in this section.]
11. Committee on the Rights of the Child, General Comment 10, paragraph 11. For more details on the difficulties of upholding children's rights in detention, and the types of harm to children's development, see e.g. Children Deprived of Liberty: Rights and Realities, Geert Cappelaere with the assistance of Anne Grandjean and Yasmin Naqvi, Defence for Children International, 2005 available in the 'Resources' section of the toolkit ('By theme' / 'Detention').
12. Beijing Rules 2.3.
13. Refer to the body of international instruments referenced in Section A on 'Why are diversion and alternatives important? / Child rights and the international legal framework' which are collected in the 'Resources' section for further details.
14. Committee on the Rights of the Child, General Comment 10, paragraph 13.
15. Committee on the Rights of the Child, General Comment 10, paragraph 11.
16.UNICEF, Children in Detention: Calculating global estimates for Juvenile Justice Indicators 2 and 3, Programme Division, UNICEF, New York, 2007 (internal document).
17. Progress for Children: A Report Card on Child Protection, Number 8, UNICEF, September 2009, p.20.
18. Cantwell, N. and Cappelaere, G., UNICEF’s Child Protection Approach in the sphere of Juvenile Justice - A proposed outline, 2001, p.9. [Internal document - not for circulation].
19. Commentary to Beijing Rule 19.

 


 

 

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