Conclusions

Currently in England and Wales, the law considers that all children below ten years of age are exempt from criminal liability for their actions as such children are morally not responsible and lacking blameworthiness. Correspondingly, the law assumes all children are sufficiently mature at ten years of age to accept criminal responsibility for their behaviour. Such an approach fundamentally misrepresents the evidence we have regarding young people who offend, and the youth criminal justice system needs to be redirected towards a normative framework better equipped to accommodate the realities of childhood, the child’s experiences and the reality of daily life. The criminal justice system needs to be able to empathise with the child’s feelings. The current approach provides no consideration of the child’s developmental immaturity or their cognitive limitations. Instead, children who are involved in offending behaviour are reconstructed as non-children and consequently are denied the right to respect for their evolving capacities. Such thinking is needlessly divisive and encourages highly contestable judgements about individuality, identity and welfare. Consequently, the rights of the child offender become invisible and ignored. Children have a right to assistance in reaching their capabilities, otherwise they will be ‘mutilated and deformed’ by their experiences (Dixon and Nussbaum, 2012). This right to assistance and protection is recognised in other parts of the English legal system. For instance, a young person must be sixteen years old before they can consent to sexual relations, including consensual sexual relations with another young person. A young person cannot join the armed forces until they are sixteen years old. They must be eighteen years old to buy cigarettes or alcohol, get a tattoo or vote. There are exceptions to the rules of contract which apply to young people. Within family law, young people are assumed to lack the competency to participate responsibly and articulate their own wishes and feelings unless they can prove to the court that they have sufficient understanding (F (Mother) v F (Father) [2013] EWHC 2683 (Fam), Gillick v West Norfolk & Wisbech AHA [1986] AC 112,

Mabon v Mabon [2005] EWCA Civ 634, Re H [1993] 1 FLR 440). Thus, the law recognises that these actions require a certain level of maturity and capacity, and that children need protection in a paternalistic form from the long-term consequences of their immaturity in various areas of their lives. This contrasts with the English criminal justice system, which views a child offender as an agentive child who must accept responsibility.