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August 2, 2016

How young is too young? Charged, tried and imprisoned at the age of 10.


Dr Wendy O’Brien

Opinion piece by Dr Kate Fitz-Gibbon (Monash) and Dr Wendy O’Brien (Deakin) published in The Guardian.

Screen Shot 2016-08-01 at 7.28.00 pmAt what age should a child in Australia be held criminally responsible for their actions? Why do we criminalise and imprison very young children? These are among the critical questions that must be asked as part of the current national attention towards the treatment of youths in Australian detention facilities.

Harrowing images of the restraints used on a child held in Don Dale youth detention centre in Northern Territory have shone a national spotlight on the conditions experienced by children in custody. In response the government has announced a royal commission.

Demonstrating that the problem is not unique to one state or facility, two inquiries are also under way in Victoria into the alleged abuse of children in youth detention. Despite this, the prime minister, Malcolm Turnbull, has pushed back against calls for the royal commission to adopt a national scope, maintaining that focus and expediency is needed.

While an urgent review of the treatment of young persons in custody in Northern Territory is required, these fundamental questions are a nationwide concern.

In all Australian states and territories, the age at which a child becomes criminally responsible is set at 10 years old. This means that at the age when most children are finishing year 4 and entering year 5 at primary school, they are also at the age when their actions become accountable by law.

From 10 years of age children in Australia can be charged by police, tried in our courts and imprisoned in detention facilitates, in some cases for life.

While there are various protections in place to ensure the age of the child is taken into consideration by police, courts and corrections – for example, the use of children’s courts and youth detention facilities – these safeguards are applied unevenly, and research has shown these to be inadequate in many cases.

This is made worse by the fact that commitments to protections are dwindling in some states. For example, Queensland has repealed the law that requires that children only be imprisoned as a measure of last resort, and in several states children can be imprisoned in adult facilities.

This diminished commitment to protecting children in conflict with the law appears to ignore the evidence about the vulnerability of very young children charged with criminal offences. Research shows that young children exhibiting anti-social behaviour often have disadvantaged backgrounds with histories of abuse, poverty and family disruption.

Research also shows that punitive intervention in both unnecessary and harmful. The vast majority of children will grow out of their offending behaviour, yet children who are criminalised – be it by charge, conviction and/or detention – are at a heightened risk of repeat offending. In other words, engagement with the criminal justice system is criminogenic for children.

Punitive responses to juvenile offending that might seek to decrease youth crime actually have the opposite effect, resulting in an increase in repeat offences. While the system aims to deter offenders, the outcomes for children protect neither the individual nor the community.

Ensuring that the Australian community is aware of the damaging impacts of juvenile detention is important in challenging the currency of “tough on crime” policies. Instead of imprisoning children, the goal must be to divert vulnerable young children away from the justice system wherever possible.

The criminalisation of very young children in Australia contributes to the nation’s already tarnished human rights record.

In June 2015 Amnesty International published a report calling on the Australian government to raise the minimum age of criminal responsibility nationally from its current position of 10 years old, consistent with the UN’s stance that 12 years old is “the lowest internationally acceptable minimum age of criminal responsibility”.

Despite this call for reform all Australian state and territory jurisdictions continue to legislate that children can be held criminally accountable from 10 years of age.

Australia stands apart from many international jurisdictions that set the minimum age of criminal responsibility at 12 years old or above, including Canada, Belgium, Denmark, Germany, Italy, Norway, and Spain. In these countries a range of alternate supports and responses are in place to ensure that children who commit wrongful behaviour are diverted away from the criminal justice system while still providing the necessary social supports and care to facilitate desistance from criminal activity.

There is much for Australia to learn from the experiences of these international counterparts, not least the adoption of a welfare approach to children in conflict with the law.

The gulf between the internationally accepted minimum age and the Australian approach should be an issue of critical importance for the forthcoming royal commission and the other inquiries currently under way in Australia.

The Don Dale case provides a powerful reminder of why there is no place for very young children in criminal justice institutions. Now, these harrowing revelations must also provide the impetus for Australian national and state governments to cease criminalising and incarcerating very young children.

Kate Fitz-Gibbon and Wendy O’Brien

This article was originally published in The Guardian.

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