Children and young adults in contact with the law: systemic vulnerabilities and the criminal justice system – Part 1
By Anna Pivaty, Stephanie Rap and Eva Schmidt
On 16 April 2021, Dr. Stephanie Rap (Leiden University), Dr. Anna Pivaty (Radboud University and Maastricht University) and Eva Schmidt, LL.M. (Leiden University) organised an international webinar with the title ‘Children and young adults in contact with the law: Systemic vulnerabilities and institutional responses’ sponsored by the Netherlands Network for Human Rights Research. This blog describes the ideas presented in the first panel of the webinar, which addressed the under-explored and ‘emerging’ factors leading to vulnerabilities of children and young adults in criminal justice systems.
Children and young adults are by definition considered to be vulnerable participants in legal procedures. Traditionally their vulnerability was explained by reference to individual factors, such as age and maturity. However, the recent view on the concept of vulnerability is that it is also co-created by the legal system itself. In the 2014 article on childhood vulnerability, three dimensions of child vulnerability were distinguished: an individual dimension based on psychological development; a structural dimension based on access to economic resources; and a systemic dimension based on risks embedded in the societal systems with which children interact.
The notion of systemic failures can potentially lead to greater vulnerability of children and young adults in different legal proceedings. The legal system might fail to sufficiently accommodate diversity or create barriers to the effective participation of children and young adults. Therefore, the webinar sought to come to an enhanced understanding of the concept of vulnerability of children and young adults in contact with the law. An international group of researchers shed light on systemic vulnerabilities and institutional responses, with a particular focus on under-explored factors leading to vulnerability.
Ann Skelton (University of Pretoria, Leiden University and member of the UN Committee on the Rights of the Child) gave the keynote speech, “Upper age limits and beyond”, focusing on the child justice system. She first addressed the importance of the upper age limit of the application of the UN Convention on the Rights of the Child (CRC), which is set at the age of 18 years at the time of the commission of the offence. Skelton expressed her concern that some States seek to lower the age of criminal responsibility or make exceptions where certain children are treated as adult offenders. Therefore, an important part of the Committee’s monitoring tasks is to urge States to raise the upper age limit and allow for no exceptions. In General Comment No. 24, the Committee opened the door to extend some of the principles of the Convention to young adults in, as Skelton referred to it, cases of ‘bad timing’: children who turn 18 whilst being in the system. This approach is in line with the developmental and neuroscience evidence that shows that brain development continues into the early twenties. In this context, Skelton argued that child justice systems should extend their protection to also include these young adults. Skelton concluded by saying that child justice laws need more flexibility and that States should not treat the upper age limit too rigidly. Inflexible age limits can cause systemic responses to be overly harsh and thus some contours of these artificially created age limits should be softened. It was also noted during the ensuing discussion that in most legal systems, developmental and neuroscience findings are used (if at all) at the sanctioning stage, but not at the earlier stages of the legal process.
Anna Pivaty (Radboud University and Maastricht University) considered the alternative ways of dealing with criminal cases without involvement of a judge (‘out-of-court disposals’) in the Netherlands and the position of child suspects. The presentation focused upon the potential obstacles towards meaningful involvement of children in the decision-making procedures. Anna observed that although internationally and nationally out-of-court disposals are viewed as a preferred option of dealing with children in conflict with the law, the Dutch system of out-of-court disposals as applied to children contains several weaknesses, which may place children coming into contact with it at increased risk.
Ingun Fornes (University of Bergen) discussed the dualistic approach in the Norwegian justice system, that could lead to a situation where offenders over the age of 15 can face restrictive measures, including custody, from the child welfare system as well as penalties in the criminal justice system. She questioned whether this situation results in a breach of the right not to be tried or punished twice for the same offence.
Christina Peristeridou (Maastricht University) and Dorris de Vocht (Maastricht University) addressed the potential impacts - both negative and positive - of remote justice on the procedural rights and effective participation of child suspects. They noted that children might feel safer and less intimidated when appearing on screen. On the other hand, appearing on video might alter how children are perceived (e.g., making them appear older) and also how the trial is perceived by children.
Eva Schmidt (Leiden University) discussed the position of young adults in the Dutch criminal justice system, who can be sentenced either under the youth or the adult system. An important finding from Eva’s interview-based research is that decisions on whether or not to apply youth sanctions to young adults are determined not only by substantive grounds, but are also influenced by decisions taken earlier in the proceedings, such as whether young adults were placed in a youth or adult remand detention facility and the development they go through during their stay there. In principle, a young adult is only placed in a youth facility for pre-trial detention if the possibility of application of a juvenile sanction is already addressed by the public prosecutor during the preliminary phase of the proceedings.
Lore Mergaerts (KU Leuven) showed in her presentation that instead of merely focusing on individual characteristics, an interactive and dynamic approach should be adopted in identifying a suspect’s vulnerability in pre-trial investigations. She also called for a departure from a categorical approach to defining who is vulnerable or not in the criminal justice system. Instead, she argued that we should focus on the functional capabilities of the person at the given moment, as well as the context-related aspects such as the complexity of the specific legal proceedings.
The discussant of the first panel, Stefaan Pleysier (KU Leuven), provided a short reflection on panel 1 and addressed the need to continue working towards improvement of youth justice systems.
Stefaan summed up his remarks with the following reflection:
Having a youth justice system is a first step towards ensuring that children and young adults in conflict with the law are treated appropriately, but it is insufficient. Research presented today and my own research shows that even within those youth justice systems, not all procedures are child-friendly. Youth justice systems are more complex than adult systems. They often pursue a variety of objectives, which are unclear even for academics let alone children in contact with these systems. Paradoxically, this can lead to less protection for children than adults in conflict with the law.
Anna Pivaty is Assistant Professor of Criminal Law, Faculty of Law, Radboud University.
Stephanie Rap is Assistant Professor, Department of Child Law, Institute for Private Law, Leiden University.