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On Human Rights Day let's talk about raising the age of criminal responsibility

Children of 10 in England and Wales are held criminally responsible for their actions. That can't be right.

Three nine year olds

The 10th December is International Human Rights Day, when people and organisations around the world celebrate the Universal Declaration of Human Rights. Despite the significance of the day, my human rights day will begin like most of my other days: with the 9am chorus of  ‘I love yous,’  as I leave my son’s primary school.

Eleanor Roosevelt, the driving force behind the Universal Declaration, recognised that human rights begin: ‘in small places, close to home - so close and so small that they cannot be seen on any maps of the world’. She was referring to places like my son’s school, his playground, and the neighbourhoods we all live in. The former First Lady recognised that unless adults and children have equality, justice and dignity in the small places, they will never have these things elsewhere. ‘Unless these rights have meaning there, they have little meaning anywhere,’ she said.

This year, Human Rights Day has an added significance for children as it coincides with the 25th Anniversary of the United Nations Convention on the Rights of the Child (UNCRC).

I am reminded of the importance of these rights both in my work for Just for Kids Law, and in my day to day interactions at my son’s school. He and his friends have now reached year 5, which is a significant  year; they are nearly at the top of the school; they have responsibilities, like playground buddying and school council. Year 5 is also significant because they are turning 10.  It is a big moment for any parent when their child reaches double figures, but for me, it is tainted with the knowledge that each of the children that I see turning 10, has now reached the age of criminal responsibility. In the eyes of the law, they are now just as responsible for their actions as any adult.

For me, because of my work, this means that I see every childish mistake made as potential for criminalisation. It is no longer ok to ‘forget’ that you have your penknife in your pocket when you go to school. Tripping someone up in the playground can lead to a night in the cells. Carving your name in the desk could mean a criminal record.  These are all real examples of cases that I have seen during my 10 years as a youth justice lawyer.

Once the machinery of the criminal justice system has started, it is difficult to stop – however ludicrous and heavy-handed a response it may seem to an outsider. It is not a system designed to question its own earlier decisions.  But we as a society and as citizens can ask why?  Why would we want a 10 year old child to have a criminal record for life for something that they did when they were still at primary school, no matter how petty?  Why do we expect a 10 year old to be able to participate in a court process that many adults struggle to understand? And why do we imagine justice will be served or the truth emerge by an adversarial system which pits bemused 10 years old against  adult lawyers  who have years of training and experience in the art of cross examination?

Whenever the subject of raising the age of criminal responsibility is discussed, opponents invariably cite the murder of James Bulger by two 10 year olds as evidence for why children this age should be held fully criminally responsible for their actions. The killing of the two year old was as shocking as it was horrific, but I believe we shouldn’t  allow this dreadful anomaly to colour the whole conversation around the criminalisation of young children.

Nine year old at the zooThe UNCRC says that it is unacceptable for any country to have an age of criminal responsibility below 12.  It has been 19 years since the UK ratified the convention, and part of that ratification is an agreement to review legislation in the light of the commitment to act in the best interest of the child, yet no government has found  the courage to raise the issue. Any reform has been in the other direction. It was a Labour government in 1998 which abolished the concept of doli incapax , the presumption that a child under 14 did not have capacity to understand the consequences of their actions and the ability for the court to individually assess each child. Now, every child once they reach double figures is as culpable as any adult.

The former Labour prime minister Gordon Brown recently talked about a civil rights struggle, led by young people: ‘Young people themselves are now fighting for their civil rights. Unwilling to wait for adults to discharge what should be their duties towards children…. In the 1950s, the world fought a civil rights struggle against colonialism, in the 1960s against colour discrimination, in the 1970s and 1980s against apartheid. Now it is time to deal with unfinished business — the continued violation of the rights of children.’

As we mark International Human Rights Day 2014, I couldn’t agree with him more.

Martin Luther King famously said:  ‘Cowardice asks the question, “Is it safe?” Expediency asks the question, “Is it politic?” But conscience asks the question, “Is it right?” And there comes a time when one must take a position that is neither safe, nor politic, nor popular but because conscience tells one it is right.’

Just for Kids Law urges the government to take the right position. We call for the age of criminal responsibility to be raised, so we as a nation can live up to the vision of both the Universal Declaration and UNCRC, and ensure that children’s human rights have meaning where they matter most – ‘in small places, close to home.’

About the author

Shauneen Lambe is the founder and director of Just for Kids Law.  She qualified as an attorney in Louisiana and a barrister in the UK and started her career working for Clive Stafford Smith representing people facing the death penalty in the USA. In 1999 she helped establish the charity Reprieve. In 2006 she set up Just for Kids Law in London. She is an Ashoka Fellow, the UK chair for Global Dignity and on the board of Birthrights a charity protecting human rights in childbirth.

 


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