“The ladder of law has no top and no bottom.”
Bob Dylan
Statistics and experience have shown that criminalisation, and in particular imprisonment, tends to undermine efforts to assist juveniles in reintegrating positively into the community. Criminalisation and periods spent in juvenile detention centres may have the reverse effect of turning these juveniles into adult criminals. In Ireland, my home country, reoffending continues to be highest among younger people, with nearly 80% of those aged under 21 when they were committed to prison reoffending within three years of release. Other, random country statistics show: UK 18%; US 80%; Australia 41%.
Young people in youth detention have complex needs—they have often experienced socio‐economic disadvantage, family breakdown, trauma, neglect, drug abuse and violence. A key aim of youth detention is reducing young people’s risk of reoffending. Addressing the underlying causes of offending, ensuring good primary and mental health, and enabling education are all steps that can reduce reoffending.
Reducing reoffending is one of the key benchmarks of an effective justice system. Reoffending rates remain stubbornly high and this demands alternative responses, a recent report on penal reform in Ireland found. “Prison cannot solve the homelessness, poverty, addictions, trauma and mental health issues that often underlie persistent low-level offending. Instead of punishing disadvantage, we need to see investment in addressing the root causes of offending, including provision of housing, mental health and addictions services in the community. Alternatives such as integrated community service orders are less damaging than prison, less costly, and the community benefits too. “
The Council of Europe Guidelines on child-friendly justice are clear, concise and sadly often ignored.
‘A child-friendly justice system must not “walk” in front of children; it must not leave them behind. It treats children with dignity, respect, care and fairness. It is accessible, understandable and reliable. It listens to children, takes their views seriously and makes sure that the interests of those who cannot express themselves are also protected.’
“Child-friendly justice” refers to justice systems which guarantee the respect and the effective implementation of all children’s rights at the highest attainable level, bearing in mind the principles listed below and giving due consideration to the child’s level of maturity and understanding and the circumstances of the case. It is, in particular, justice that is accessible, age appropriate, speedy, diligent, adapted to and focused on the needs and rights of the child, respecting the rights of the child including the rights to due process, to participate in and to understand the proceedings, to respect for private and family life and to integrity and dignity.
The fundamental principles that drive this approach include:
Participation; Information, access, consultation in all aspects of the search for justice and youth incarceration;
Best interests of the child; all other rights of the child, such as the right to dignity, liberty and equal treatment should be respected at all times;
Dignity: Children should be treated with care, sensitivity, fairness and respect throughout any procedure or case, with special attention for their personal situation, well-being and specific needs, and with full respect for their physical and psychological integrity;
Protection from discrimination: The rights of children shall be secured without discrimination on any grounds such as sex, race, colour or ethnic background, age, language, religion, political or other opinion, national or social origin, socio-economic background, status of their parent(s), association with a national minority, property, birth, sexual orientation, gender identity or other status. Specific protection and assistance may need to be granted to more vulnerable children, such as migrant children, refugee and asylum-seeking children, unaccompanied children, children with disabilities, homeless and street children, Roma children, and children in residential institutions.
Rule of law: The rule of law principle should apply fully to children as it does to adults. Elements of due process such as the principles of legality and proportionality, the presumption of innocence, the right to a fair trial, the right to legal advice, the right to access to courts and the right to appeal, should be guaranteed for children as they are for adults and should not be minimised or denied under the pretext of the child’s best interests. The protection of the best interest 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.
The European Model for Restorative Justice with Juveniles (European Council for Juvenile Justice) illustrates the advantages of a restorative approach to child offending. A summary of their research and conclusions is outlined below. The development of the model is based on a comprehensive review of current practice of restorative justice throughout Europe. The model puts a strong emphasis on both children’s rights, including the best interest of the child, and victims’ rights.
Evidence shows that a large number of children who commit an offense have a history of exposure to violence and abuse. Many suffer from depression and distress, which is likely to be exacerbated by punitive responses.
Restorative justice promotes a clear shift in the way a criminal offense is perceived and responded to. It moves away from retributive punishment and seeks to address the underlying causes and consequences of offending. Its overall aim is to repair the harm caused by wrongdoing. Depending on the individual circumstances and the harm caused, restorative justice processes can be adapted and implemented in various contexts and through various models, such as mediation, conciliation, conferencing and sentencing circles.
Child sensitive restorative justice promotes the child’s rehabilitation and reintegration into the community. It may bring together the victim, the young offender, the child’s parents or guardians, child protection and justice professionals, the school and the community.
The benefits of restorative justice for young people are numerous. Children who participate in restorative processes show fewer tendencies towards anti-social behaviour in the community and at home. Participation in restorative justice processes gives children an understanding of the consequences of their acts on others and an opportunity to take responsibility.
Research in Europe and in other regions reveals that victims report lower levels of fear and post-traumatic stress symptoms after a restorative justice process. By meeting face to face and hearing a young offenders’ story, they are far more likely to forgive the young person and put the incident behind them. A recent study shows that at least 85% of victims that have participated in a restorative justice process express satisfaction.
The case for a restorative rather than a retributive approach in matters of youth detention and rehabilitation is a strong one, and should not remain in recess for too long in the trial of public and political opinion and action.
Tom McGrath
