Written by Leah Rea
Following the emergence of the COVID-19 pandemic, and the rollout of national measures introduced in response, there was a heightened focus on the impact of the pandemic upon children and young people across Europe. In Ireland for example, Darmody et al (2020) noted the implications for increased health and wellbeing inequalities among children and young people. Research conducted by O’Sullivan et al (2021:11) found that the national lockdowns introduced to address COVID-19 had negative mental health outcomes for children and young people. As countries sought to “build back” from the pandemic, it seemed that the post-pandemic landscape provided a space for the consideration of the status of children’s rights in Europe, including areas for advancement. In Ireland, research has found that the pandemic may have had an impact on children’s access and enjoyment of their rights; it is difficult to ascertain how acute this was due to the lack of consultations with children in the country (Mallon and Martinez-Sainz, 2021:290). Notably however, national discourse has focused on identifying issues of human rights arising from or exacerbated by the COVID-19 pandemic, not rectifying outstanding rights issues. One such issue within the sphere of children’s rights which has been overlooked remains that of the conceptualisation of children within the criminal justice system, and more specifically, the age of criminal responsibility.
Reviewing the legal age of criminal responsibility across Europe presents “extreme contrasts” (Weijers, 2016:301): from 12 years old in the Netherlands, to 15 years old in the Czech Republic, Poland, and the Scandinavian countries, and 16 years old in Belgium. Prior to the UK’s withdrawal from the EU, the country’s devolution arrangements emphasised the scale of the fragmented European landscape: in England, Wales, and Northern Ireland, a child can be held criminally responsible at the age of 10 years old and in Scotland, the age of criminal responsibility is 12 years old. With England, Wales, and Northern Ireland then having the lowest age of criminal responsibility within the EU, the UK was regularly criticised by UN Treaty monitoring bodies (2016: para 79), as well as the Council of Europe (Tomlinson, 2020).
The situation is further complicated by the operation of a de facto dual categorisation of the age of criminal responsibility, whereby there may be different age limits dependent upon the offences allegedly committed. Several European countries, such as the Republic of Ireland and Poland, have within their criminal law frameworks a standard, minimal age for “common” criminal cases involving a young alleged offender (12 and 17 years old respectively in these jurisdictions), and a lower age limit within so-called “extreme” criminal cases, such as cases involving murder, manslaughter, and rape (10 and 15 years old respectively). Conversely, France has a standard sentencing minimum age of 13 years old, which means young offenders may receive punishment from that age, yet it also recognises a minimum age of 10 years old concerning minor offenders, who may receive educational treatment in lieu of punishment. This patchwork of statutory definitions of what constitutes the age of criminal responsibility is not only confusing in the context of developing EU-wide criminal justice policy frameworks. It also raises concerns in the context of standardisation of children’s rights and agency: all of the lower age limits within the legal definitions noted above contravene the UN Convention on the Rights of the Child.
In 2021, with its adoption of a new, comprehensive policy framework, the “EU Strategy on the Rights of the Child”, the EU Commission sought to confirm its intent to ensure the protection of children’s rights. The policy framework noted many children continue to experience violations of their rights, and that the pandemic had had a detrimental impact on rights access including increasing existing inequalities. Within the policy, at section four, the framework sets out the objective to ensure “Child-friendly justice”. This thematic policy area however fails to consider, or address, the existing barrier to children’s rights posed by low ages of criminal responsibility. The opportunity to advance children’s rights in this context by inviting Member States to review their existing legal definitions and ensure compliance with their obligations under the UN Convention on the Rights of the Child – a text which the EU Commission cites within its policy strategy – has seemingly been missed.
This article aims to highlight the importance of the age of criminal responsibility within the children’s rights sphere by reviewing the gap between domestic law and international human rights law across Europe, and the role of the EU in addressing this lacuna. Analysing the existing international human rights norms and the overarching EU human rights framework, this article considers the 2021 EU Strategy and posits that the EU missed an opportunity to advance its own commitment to children’s rights by failing to encourage Member States to review their existing ages of criminal responsibility.
International Legal Frameworks
The primary framework for consideration is the UN Convention on the Rights of the Child. The Convention addresses children’s interests across “the three Ps”, recognising children’s rights to provision, protection and participation within the framework of four guiding principles: i) the right to non-discrimination (Article 2); ii) the principles of the best interests of the child (Article 3); the right to life, survival, and development (Article 6); and the right to participation (Article 12; see CRC/GC/ 2003/5 2003, para 12). As Peleg explains, the premise of the guiding principles is the requirement that “any decision, law, court judgment or policy”, which considers children, will protect and promote the stipulated rights including non-discrimination of children (2019:139). Moreover, any decision-making within a legal, political, or policy context must also consider the best interests of the child “as the primary consideration” when a balance of conflicting or competing rights and interests of other parties is presented (Peleg, 2019:139); “other parties” includes the public at large, pertinent for discussion in the context of the age of criminal responsibility recognised within the criminal justice system. Despite the emphasis on the primacy of the child’s best interests, as a concept it can be open to subjective interpretations and consequently, manipulation, particularly in a socio-political context: a conservative socio-political approach may argue that the best interests of a child engaged in the criminal justice system is for the child to be held within a juvenile detention centre on the basis of “learning from their mistakes”.
Whilst the Convention addresses the recognition of and access to children’s rights within juvenile justice (Articles 37 and 40), it does not set a minimum age of criminal responsibility. However the UN Committee on the Rights of the Child (“UN CRC Committee”) has determined it should be the age of 14 at the youngest (CRC/C/GC/24, para 33). This reflects an evolving position, as in 2007 the UN CRC Committee had held that the “absolute minimum” age of criminal responsibility should be 12 years old (CRC/C/GC/10 2007, para 31). The UN CRC Committee has expressed concern when the age of criminal responsibility is set -what it deems to be- too low (Hodgkin and Newell, 2002) and commended states which have a higher minimum age (CRC/C/GC/24, para 33). Moreover, the age identified within the UN CRC Committee’s General Comments may be viewed as a minimum which states may advance upon: the Committee had previously welcomed a proposal from the Nigerian Government to raise the age of criminal responsibility to 18 years in 1996 (CRC/C/15/Add.6, para 39).
Reviewing these key provisions within international law, the potential for tensions across Europe due to the lack of a streamlined approach is apparent. The guiding framework developed within international law and the general comments of the UN CRC Committee emphasises the importance of prevention and early intervention in the criminal justice system context, and encourages the reduction of contact with the system, including a focus on the use of non-custodial measures and incarceration as a last resort confined to older children only. The introduction of a minimum age of criminal responsibility therefore encapsulates this approach, attempting to reduce the contact young(er) children have with the criminal justice system on the basis of their youth and vulnerability. As Lansdown outlines, it is a recognition by society that young(er) children should not be held accountable for behaviour and its outcomes which they lack competence to fully understand (2005:36). An age of criminal responsibility in line with international norms affirms the responsibility of national governments to ensure vulnerable children receive the support needed by state services to avoid conflict with the criminal justice system, not punishment and criminalisation (Lansdown, 2005:36). However, a low age of criminal responsibility increases the likelihood of conflict with the law regardless of a child’s competency and understanding, which will be compounded if this low age is accompanied by a punishment-centric approach.
The operation of de facto dual categorisation of an age of criminal responsibility across Europe, as outlined above, whereby there may be a lower age of criminal responsibility for severe offences and a higher age of criminal responsibility for “common” offences, causes further tensions with international law. The Convention recognises the concept of the “evolving capacities of the child” at Articles 5 and 14(2). The establishment of the concept denoted the direct relationship between the State and the child, a seminal moment in which the child was then “visible” in accordance with international law (Lansdown, 2005:6). The concept moreover enabled the recognition that as children grow and develop, their capacities evolve, and they will exercise increasing agency in their lives. As Varadan outlines (2019:329), “evolving capacities” as a concept challenges the traditional state model of policymaking in which children are presumed to lack capacity until they meet a certain age; it also rejects the state construct of children’s rights which can be exercised only when children reach a specific threshold of capacity. Applying this concept to the dual categorisation model, we must question whether the reduction in the age of criminal responsibility for most serious offences aligns with the understanding of evolving capacity. An offence such as murder requires a number of criteria to be met, such as the deliberate act to kill committed with the intention to kill, and the corresponding understanding of same. In the Republic of Ireland for example, can a child of 10 years old fully comprehend their actions if charged with this offence? Have their capacities – to understand the criminal law, to engage with the state as a citizen, to understand their actions and feelings, to face the outcome of their criminal justice system engagement – evolved sufficiently to face criminal court proceedings, and the outcomes of criminal proceedings, such as incarceration within a juvenile prison setting, and to comprehend why this must be? Conversely, how does this scenario align with a 10-year-old child who has knowingly stolen a product from their local newsagents, but will not face a charge of theft, as they are perceived as too young by the state? The dual categorisation model may purport to reflect the “evolving capacities” concept in that young children are arguably aware of the significance of life, of ethics and morality which underpin society. But the model results in a skewered approach to justice, to the detriment of children and their rights. In this instance, then, we can understand the significance of a specific determinative age of criminal responsibility, and the debate regarding the harmonisation of the age of criminal responsibility across the EU.
The EU human rights frameworks
The EU legal order provides for the protection of children’s rights, however the international norms on the age of criminal responsibility outlined above are not incorporated within the human rights provisions of the EU’s legal order. This is an interesting omission for two reasons: i) the fact that the EU’s frameworks utilise the language of the UN Convention; and ii) the EU’s existing general provisions on freedom, security and justice have focused on enhanced cooperation and standardisation, including the recognition and protection of the rights of suspects and accused persons.
The foundations of the EU’s approach to children’s rights fall within the scope of EU constitutional law. Article 3(3) TEU outlines the EU’s objective to promote the protection of the rights of the child. Further, Article 3(5) TEU provides that with regards to the EU’s international relations, the EU will “contribute” to the protection of “human rights, in particular the rights of the child”. This provision thus confirms the role of the EU as a driving force in the protection and promotion of human rights, including children’s rights, and encouraging standardisation in the recognition and protection of the same across Member States. The framing of the UN Convention in the context of children as “having” rights and being “rights holders” is present within the EU Charter: Article 24 encompasses the conceptualisation of children’s dignity, as persons in their own right and as rights holders. In addition, Article 24(1) of the Charter specifies “age and maturity” as criteria for the balancing of the protection of children’s rights, and child participation in society. EU Directives which engage in children’s rights have been developed and implemented; such Directives to date have focused on combating sexual abuse and sexual exploitation; combating trafficking; and promoting procedural safeguards for children who are suspects or accused persons in criminal proceedings (Doek, 2019:19).
The adoption of the UN Convention’s framing of children’s rights and associated concepts within the EU’s human rights frameworks is not a coincidence. It has been over 30 years since countries across Europe adopted the UN Convention of the Rights of the Child. It is clear that progress has been made in the recognition, protection, and promotion of children’s rights across Europe since the adoption of the Treaty, and this has involved cooperation and leadership from the EU institutions, national governments, and civic society organisations. The vision of geopolitical equality and equity of children’s rights however has been compelled to face stark political reality; it has been recognised that children in Europe will experience different levels of rights and protections depending on which European country they reside in (Zaharieva, 2019). The issue of a fragmented European legal landscape regarding the disparity in the age of criminal responsibility and the corresponding ramifications for children’s rights can be considered in this vein. The matter of ensuring standardisation across the EU in the context of the age of criminal responsibility and children’s rights has been subject to debate prior to the emergence of the pandemic. The EU’s Agency for Fundamental Rights (“the FRA”) has previously noted the importance of a minimum age in all judicial proceedings including criminal justice proceedings. The FRA argued that differences in minimum age requirements across Member States could result in a disparity in treatment across the EU – undermining the EU’s legal provisions for the promotion of equality (2018:5). This potential for differential treatment of children subsequently prompted concerns that children’s rights, as “provided for and protected” under the EU legal order, “are not consistently implemented” (2018:5). The FRA had sought to encourage the EU and its Member States to address the minimum age in judicial proceedings in a “consistent and harmonised way” in accordance with respective legislative competencies (2018:5). Whilst the FRA did not expressly reference the need for EU harmonisation in the age of criminal responsibility, the balance it emphasised as regards children’s rights, participation, and evolving capacities and its concerns relating to the disparity of the treatment within court proceedings is applicable to this matter.
The acknowledgement of respective competences is pertinent to this discussion. As noted, the EU’s existing general provisions on freedom, security and justice have focused on enhanced cooperation and standardisation, including the recognition and protection of the rights of suspects and accused persons. In matters of European criminal justice, including the protection of the rights of accused and suspected persons in criminal proceedings, harmonisation has already been encouraged through a series of Directives for implementation across Member States (Riehle and Clozel, 2020:322-323) and CJEU case law has particularly clarified procedural rights (2020:324). Directive 2016/800/EU in particular provides for children’s rights to information and parties with parental responsibility for them when in contact with the criminal justice system; for the purposes of this Directive, children are defined as those under 18 at section (1), which is notable given the disparity in the age of criminal responsibility across Europe. The breadth of Directives on criminal justice matters which include provisions recognising the rights of children, indicates that there is scope within the EU’s competency to encourage Member States to act to ensure standardisation of the age of criminal responsibility.
The 2021 EU Strategy – a missed opportunity?
The EU Commission affirmed its objective of ensuring the protection of children’s rights with the adoption of its “EU Strategy on the Rights of the Child” on 24 March 2021. The Strategy aims to protect and promote children’s rights, and provide the best possible life for all children across Europe. The policy framework notes that many children continue to experience violations of their rights, and that the pandemic had had a detrimental impact on rights access including increasing existing inequalities. The EU Strategy aims to rectify this by focusing on tackling social exclusion and poverty. It outlines six thematic areas, with proposed actions to achieve each area: i) Child participation in political and democratic life; ii) Socio-economic inclusion, health and education; iii) Combating violence against children; iv) Child-friendly justice; v) Digital and information society; vi) Ensuring children’s rights on a global scale. The objectives within these thematic areas are grounded upon a human-rights based approach – the introduction opens with a declaration that “children’s rights are human rights” – in which the specific rights identified for protection and promotion are drawn from existing international and EU legal frameworks, primarily the UN Convention and the EU Charter.
Thematic area four, “Child-friendly justice”, envisions an EU in which the justice system “upholds the rights and needs of children”. The EU Strategy recognises that children should feel safe and able to participate within the justice system, whether as witnesses, suspects, or accused in civil, criminal, or administrative proceedings. It affirms that judicial proceedings must adapt to the age and needs of children, recognise and respect children’s rights, and give primary consideration to the child’s best interests. It further recognises that national justice systems “must be better equipped” to address the needs and rights of children. The EU Strategy identifies specific issues of concern, such as difficulties experienced by children to access justice and obtain effective remedies, or issues experienced within divorce / separation proceedings or asylum proceedings. Interestingly, the EU Strategy identifies issues of deprivation of liberty arising from contact with the justice system, and emphasises the importance of Member States ensuring the increased use of non-custodial measures so that detention is used as a last resort only. The section concludes with a concise list of action points to be undertaken by the EU Commission; this list focuses on addressing issues experienced within divorce / separation proceedings or asylum proceedings, including developing alternatives to detention use in the context of migration procedures only. Finally, the EU Strategy outlines six policy objectives, which the EU Commission “invites” Member States to develop. Missing from the suggestions posed to Member States is the consideration of encouraging the review of existing legal definitions of the age of criminal responsibility within Member States, and inviting Member States to ensure that their criminal legal frameworks comply with their obligations under international law, namely under the UN Convention on the Rights of the Child in this area.
The omission of the age of criminal responsibility as an issue within the criminal justice system in Europe is stark. It is perplexing that the EU Commission did not consider the nexus between children’s rights, the age of criminal responsibility, and the issues arising from the criminalisation of children and young people. “Child friendly justice”, it is argued, does not just cover the engagement of children and young people with justice processes and court proceedings. Rather, it should extend to the engagement of children and young people with the criminal justice system, and how children and young people are perceived by the state in this context. For a policy framework that seeks to standardise the protection and promotion of children’s rights, particularly for children considered as vulnerable due to their class, social status, or ethnicity, the failure to include the ramifications for these children should they face criminalisation, including incarceration from a young age, is problematic. This is particularly when the socio-economic disparities experienced by children across Europe are known. The differing levels of rights recognition and protection across the EU, as Zaharieva (2019) succinctly stated, has ramifications for a child’s access to rights, and barriers to equal access will increase the vulnerability of a child to have their rights curtailed or violated.
Why then has the EU Commission failed to include the standardisation of the age of criminal responsibility as an aspiration within its focus on the advancement of children’s rights in Europe? It arguably is a political decision. Research has found that when there is an increased concern about the threat of youth crime, state governments will act to reassure the public that they will restore law and order: high profile cases or increases in violent offending “appear to act as triggers throughout Europe” to increase the severity of penalties (Janes, 2008:11). This occurs even when the evidence demonstrates that rates of youth offences are stable, or have decreased (Janes, 2008). Refusing to increase the age of criminal responsibility is another means of political gameplay to engage the public. As demonstrated in the UK, maintaining a lower age of criminal responsibility, particularly an age lower than the recommendations of the UN CRC Committee, has been considered within a political narrative as a means of “ensuring justice” (albeit to the detriment of child welfare). In 2010, the then Labour Government argued that serious offending had to be challenged to meet the interests of justice and victims (IIston, 2010). In its 2017 national report for the UPR, the Conservative Government of Theresa May indicated its belief that 10-year-old children are able to “differentiate between bad behaviour and serious wrongdoing” and thus should be “held to account for their actions” (2017: para 38), a rejection of international human rights norms in the practice of political gameplay.
Politicisation of child welfare is not without consequence. Within these political agendas, there is a troubling lack of consideration on the impact on vulnerable children and young people caused by retaining low ages of criminal responsibility. Formal contact with the criminal justice system has been found to have a detrimental impact on children and young people: even if the criminal justice system attempts to adopt a child welfare-oriented approach, engagement within it can lead to further criminalisation and stigmatisation (O’Brien et al, 2017). As summarised by McAra and McVie, the “deeper a child penetrates” the formal criminal justice system, “the less likely [they are] to desist from offending” (2007:315) and so presenting further ramifications for the exercise of their rights. Given that one of the thematic areas of the EU Strategy seeks to enable children to realise their full potential, it is argued that to address the engagement of young children with the criminal justice system by promoting harmonisation in the age of criminal responsibility would help advance this objective.
The discriminatory aspect of the criminal justice system is also evident in the context of the practical impact of low ages of criminal responsibility. In Europe, Jane noted the prevalence of young people from ethnic minorities in custody was “a cause for concern” (2008:11). In the Republic of Ireland for example, Irish Travellers are subjected to discriminatory policing practices such as racial profiling, and younger members of the community believe they are not treated the same by state police as their non-Traveller peers, including believing they face unjust criminal justice outcomes (Joyce et al, 2022:49-50). There is widespread belief that the community is over-policed and deliberately targeted by police. Young Travellers are thus effectively trained by their community with tactics for contending with and avoiding police contact (Joyce, 2018) in an effort to minimise contact with the criminal justice system including arrest and prosecution. Institutionalised discriminatory practices in which children of ethnic minorities, such as Irish Travellers, are not perceived as children or young people, but as older than their peers can subsequently result in these children experiencing more frequent contact with the formal criminal justice system – which is exacerbated within a jurisdiction which operates a low age of criminal responsibility. The EU Strategy actively recognises that vulnerable children may be exposed to discrimination within national justice systems, yet omits to examine the manner in which a low age of criminal responsibility could facilitate or lead to such discrimination.
Moreover, it has been argued that children facing criminalisation at a young age require greater state support, which cannot be obtained through the criminal justice system. McAlister and Lundy (2021) in the context of Northern Ireland posit it is those children in conflict with the law who “represent some of our most vulnerable children”, experiencing welfare issues and inequalities which will be exacerbated through experiences with the criminal justice system. This is a situation replicated across Europe (Duenkel, 2014). Research has posited that a holistic approach is required; this includes increasing the minimum age of criminal responsibility (Brown and Charles, 2019). The EU Commission with its focus on vulnerable children should thus consider such an approach: encouraging the increase of the age of criminal responsibility in line with international norms can arguably result in addressing other human rights issues experienced by children in these circumstances.
Europe commemorated thirty years since the adoption of the UN Convention on the Rights of the Child in 2019, and the EU Commission aimed to demonstrate its commitment to the recognition and progression of children’s rights across its borders in 2021 with the adoption of its new comprehensive policy framework. Whilst the EU Strategy on the Rights of the Child marks a seminal moment in the advancement of children’s rights and welfare in the EU, particularly with regards to upholding the aims and standards of the UN Convention, it represents a missed opportunity to address the disparity of children’s rights in the criminal justice system across Europe. Stronger efforts are required to demonstrate commitment to the EU’s pledge of reflecting the international norms provided by the UN Convention regarding the age of criminal responsibility. If the EU Commission is committed to ensuring equal rights and protections across its Member States, especially for vulnerable children, action is needed to address the consequences of a low age of criminal responsibility and the increased likelihood of engagement within the criminal justice system. The EU’s previous initiatives to develop enhanced cooperation and standardisation on matters of security and justice, especially the recognition and protection of the rights of suspects and accused persons demonstrates that there is a way to advance the harmonisation of an age of criminal responsibility in line with the UN CRC Committee’s recommendations across Member States. Whether there is the political and institutional will to do so remains to be seen.
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