Old enough to offend but not to buy a hamster: the argument for raising the minimum age of criminal responsibility

Abstract

The minimum age of criminal responsibility in Australia is 10 years. The topic of raising the age of criminal responsibility remains a fraught and challenging field of both study and thought. Despite overwhelming evidence to support an increase in the minimum age of criminal responsibility, there remains a resolute opposition in the majority of States in Australia that this age should be raised. However, the grounds for reconsidering the current position are indeed compelling. This paper expounds the persuasive arguments for raising the minimum age of criminal responsibility by examining the current scientific evidence and opinion. Considerations are explored and the relevant literature examined using the author’s framework that decisions should be just, scientific, not racist, humane, cost-effective and generally not ludicrous. Principles for an alternative approach to criminalisation and for managing the harmful behaviour of children are then offered.

The minimum age of criminal responsibility (MACR) in Australia is 10 years. The topic of raising the age of criminal responsibility remains a fraught and challenging field of both thought and study. In the majority of States in Australia, despite overwhelming evidence to support an increase in the minimum age of criminal responsibility, there remains a resolute opposition by decision makers to any suggestion that this age should be raised. However, the grounds for reconsidering the current position are indeed compelling. It is heartening that both the Australian Capital Territory and Tasmania have given a commitment to raising the minimum age of criminal responsibility to 14 years (NSW Parliamentary Research Service, 2022; Roger Jaensch Minister for Education Children & Youth, 2022).

The reasons the minimum age of criminal responsibility should be raised are examined and discussed in this paper using a simple framework, which supports arguments that are progressed in this paper. These are, specifically, that it is reasonable to expect that the decisions that we as individuals and as a society make are just, scientifically based (where appropriate), not implicitly racist, humane, cost effective and generally not ludicrous, and, most importantly, they are decisions that we can be proud to call our own.

In this paper I draw on evidence to support the assertion that the current minimum age of criminal responsibility is unjust, unscientific, implicitly racist, inhumane, expensive, and – as is suggested by the title of this paper – downright ludicrous. The last of these describes the irrationality of living in a society that holds 10-year-olds criminally responsible but expresses concern about their capacity to care for a hamster. Consider this headline in the Sydney Morning Herald: ‘Ban on Children Buying Pets’ (2010). Noting that in the UK, one can legally buy a hamster at age 16. Yet the age of criminal responsibility in both countries remains 10.

The legal context – is the current MACR just?

The injustice of the current minimum age of criminal responsibility becomes apparent when one considers the principle of procedural fairness that is enshrined in the spirit of the current legal process. Since the fourteenth century in England, defendants in criminal cases were given the opportunity to meaningfully participate in their defence, ‘out of recognition that anything less would render the right to trial an empty right’ (Redding & Frost, 2001). The cornerstone of Anglo-Australian jurisprudence is that defendants must be competent to stand trial. At common law, the test of unfitness to stand trial is whether an accused has sufficient mental or intellectual capacity to understand the proceedings and to make an adequate defence (Australian Government – Australian Law Reform Commission, 2014).

The assertion that the principle of adjudicative competence, and by extension procedural fairness, is not wholly upheld with the current minimum age of criminal responsibility is supported by an exploration of the current developmental science literature – that is, the idea of a child being unfit to stand trial on the basis of developmental immaturity, given the growing understanding in regard to brain development, and children being understood as different to adults.

Historically, children and adults in criminal justice proceedings were treated in much the same manner. Indeed, there was no separate category for the young offender in the Western legal system. Until the early twentieth century, children in many parts of the world, including Australia, were subjected to the same penalties as adults, including hard labour and corporal and capital punishment (Carrington & Pereira, 2009).

Children’s Courts were only established worldwide in the late 1800s. Notably, the Adelaide Children’s Court in South Australia, which began operating in 1890 and gained legislative recognition in 1895, was the first Children’s Court in the world (Anderson & Sendzuik, 2014).

All Children’s Courts were based on a welfare model that held at its core ‘the best interest of the child’. A central tenant of the system was the general sense of incompetence and immaturity of the child and his/her capacity for rehabilitation (Feld, 1999). Children were understood to have a greater capacity to modify their trajectories and to learn to adapt and develop prosocial behaviour if nurtured and supported to do so. The Courts were designed to be non-adversarial, taking the aforementioned juvenile incompetence and immaturity into account. Decisions resulted in non-punitive rehabilitative dispositions. Therefore, within this welfare model, a child’s adjudicative competence was essentially a non-issue (Bonnie & Grisso, 2000).

In the 1960s there was an international shift in this welfare model, in which increased similarities to the adult criminal justice model were introduced. Children were recognised as being the holders of innate and inviolable rights and deserving due process. Under this revised model, the best interests of the child were sought while providing fundamental fairness and due process (Hazlehurst, 1996; O’Connor, 1997; Pratt, 1989; Steinberg & Cauffman, 1996). At a theoretical level, this approach, with an emphasis on due process, seems consistent with the obligations created in international law. A review of the literature, however, demonstrates a divergence between theory and practice within juvenile jurisdictions, and suggests encroachment on the rights of the child (Bradley, 2003).

The evolution of the Children’s Court system continued, so that by the 1980s the model commenced another transformation into its current form, in which the focus appears to have shifted to the best interests of society rather than the child’s best interest (Grisso et al., 2003).

International legal reforms during the 1990s lowered the age at which children could be tried in an adult criminal court, and the range of young offenders subject to adult adjudication and punishment was expanded (Snyder & Sickmund, 1999). Simultaneously, the severity of penalties available to the Children’s Court increased (Grisso et al., 2003). A similar revision occurred in Australia (Antolak-Saper, 2020). Transfer of juveniles to the adult criminal court is becoming more common, there is a proliferation of the age and offence categories that permit certification, and the procedures that can be used to transfer jurisdiction have become more extensive (Steinberg, 2009).

Consequently, there is a sense that juvenile justice systems have evolved from a welfare model, where rehabilitation is the primary goal in sentencing, to a justice model, that promotes a ‘just deserts’ approach and a focus upon the responsibility of the child for the offence and on a punishment that is based on the principle of proportionality where the punishment ‘fits the crime’. Whereas the welfare model promotes ‘needs’ over ‘deeds’, the justice model emphasises the offence rather than the offender (Lambert & Mason, 1996). It is noted that although no legislative framework strictly conforms to the spirit of either of these models, they remain useful conceptual benchmarks to assess changes to juvenile justice legislation.

The scientific context – moral reasoning and brain development

Further evidence of injustice lies in the assertion by politicians, governments and laypeople who endorse the current minimum age of criminal responsibility that children aged as young as 10 know the difference between right and wrong. This does have an intuitive appeal precisely because there is a sense in which it accords with our experience. Indeed, many children are aware of the difference between right and wrong at an earlier age. But, as Bateman explains, this argument involves a categorical error:

‘Acquiring a moral understanding is not like learning to walk, a once-and-for-all achievement. It is rather a skill that improves incrementally over an extended period: just as we would not expect a toddler who has grasped the rudiments of arithmetic to solve quadratic equations, so too a primary school child who understands that damaging property is “wrong” is not manifesting an ethical stance that would properly qualify him or her for jury service’ (Bateman, 2016, para 11).

The capacity for abstract reasoning matures throughout adolescence. When comparing children aged 11–13 with children aged 14–15, this capacity is significantly underdeveloped; 14–15-year-olds are, in turn, outperformed by older teenagers (Cauffman et al., 2010). Such limitations impact the ability of those in the younger age groups to engage in the kinds of hypothetical thinking and perspective taking that are constitutive of the sort of moral contemplation implied by the attribution of criminal responsibility.

Examining the science behind such contemplation, it is apparent that the current minimum age of criminal responsibility is unscientific. As detailed below, the science proves unequivocally that adolescents aged below 14 have under-developed brains (Blakemore & Robbins, 2012). A brief description of some of the changes that occur in the neurotypical adolescent brain and the significance of these changes in regard to criminal responsibility as described by Steinberg is included for context (Steinberg, 2008). Steinberg describes two systems developing at different rates with consequences for biological, cognitive and psychological development. These are termed the socio-emotional system and the cognitive control system. The socio-emotional system is localised in the limbic and paralimbic areas of the brain, including the amygdala, ventral striatum, orbitofrontal cortex, medial prefrontal cortex and superior temporal sulcus. The cognitive control system is mainly composed of the lateral prefrontal and parietal cortices and those parts of the anterior cingulate cortex to which they are interconnected (Steinberg, 2009).

An important neurochemical change relevant to adolescent brain development and the aforementioned two systems is that of the remodelling of the dopaminergic system. Dopamine (a neurotransmitter) plays a critical role in the brain’s reward circuitry. Beginning in preadolescence, there is a remodelling of the dopaminergic system within the socio-emotional system. Consequently, dopaminergic activity in the prefrontal cortex increases significantly in early adolescence and is highest in this period. These changes are likely to increase reward-seeking behaviour and sensation seeking in early adolescence (Sisk & Zehr, 2005). These changes cause a rapid effect on the socio-emotional system, while the cognitive control system is more gradually developed. Therefore, the very nature of brain development predisposes children and adolescents to high-risk impulsive behaviour, which may include offending behaviours.

Further hormones influence brain development in puberty, though exactly how this occurs remains poorly understood (Goddings et al., 2019). We know that despite the millennia of human evolution we are not entirely emancipated from certain biological constraints. For example, oxytocin and oestradiol influence social connection and affiliation (Gordon et al., 2011). Testosterone and vasopressin influence how we deal with social challenges, including responses to threatening situations (Cooke & Shukla, 2011) and our perception of social status (Bos et al., 2012). Testosterone is also involved in reward processing (Braams et al., 2015; Forbes et al., 2010). Some studies suggest that hormonal changes during puberty are linked to how we process rewards (Bos et al., 2012) and how we regulate emotions (Galvan, 2010; Goddings et al., 2019).

The structural changes that occur in the brain during adolescence are better understood and relevant to the issue of criminal responsibility in children. The first structural change is the maturation of the frontal lobes, which occurs through synaptic pruning. Synaptic pruning refers to the process in which unwanted or weak nerve connections are cut away, allowing stronger ones to grow, which results in improved thinking abilities. This process occurs during early adolescence and is more or less complete by age 16 (Conklin et al., 2007; Crone & van der Molen, 2004; Hooper et al., 2004; Luna et al., 2001).

The second structural change is the continued myelination, which occurs concurrently with further synaptic pruning of the prefrontal brain regions, that occurs throughout adolescence and early adulthood. Myelination is the process by which a fatty layer called myelin is deposited around nerve cells allowing them to transfer information faster. This process results in improved connectivity among cortical areas and between cortical and subcortical areas of the brain, resulting in improved thinking. Thus, over the course of adolescence, aspects of executive functioning integral to the issue of criminal responsibility, such as planning, response inhibition, weighing up risks and rewards and simultaneous consideration of information from multiple sources, improves. Improved connectivity between the regions is also related to improved emotional regulation (Steinberg, 2009). The frontal lobes of the brain are the slowest areas to develop (Gogtay et al., 2004). Indeed, the research shows that the frontal lobes develop rapidly until age 25, with further development continuing until age 35.

It is well established in the literature that adolescents engage in more risk-taking behaviour than adults, a finding that is shown to be consistent across countries and cultures (Steinberg et al., 2018) and that adolescent risk-taking increases in the company of peers (Ciranka & van den Bos, 2021). It is hypothesised that this is due to changes in the socio-emotional system that occur with the onset of puberty, when there is an abrupt and exponential increase in reward-seeking (risk-taking) behaviours, combined with more gradual changes that occur in the cognitive control system, which leads to a decrease in reward-seeking behaviours. This time-gap between the systems is understood to account for the increased risk-taking behaviour seen in middle adolescence (Steinberg, 2008). Simply put, we know that the brain essentially develops from back to front with different parts of the brain developing at different times, and this imbalance offers a biological basis for some of the risk-taking we see in adolescence.

Our individual experience accords with the science and generally demonstrates that adolescents have a greater propensity to take risks. Adolescents engage in the sorts of behaviour that would, from an adult perspective, be considered downright ridiculous. Given that children are less equipped to understand complex processes, they are also more vulnerable to making ‘choices that reflect a propensity to comply with authority figures, such as confessing to the police rather than remaining silent’ (Grisso et al., 2003, p. 357).

The literature confirms that adolescence is a time of dramatic brain development; most children in contact with the criminal justice system have additional stressors that impair brain development. Consequently, children who have contact with the criminal justice system demonstrate even more pronounced decision-making deficits than those described above, as they often have additional psychosocial and psychiatric burdens. For example, psychosocial disadvantages including childhood maltreatment are highly prevalent in children appearing before the courts. Childhood maltreatment affects brain structure, function and connectivity (Goddings et al., 2019; Lim et al., 2014; McCrory et al., 2013). These brain abnormalities are linked to violent crime (Kolla et al., 2013) and recidivism (Vitopoulos et al., 2019). Childhood maltreatment is associated with an increased likelihood of being arrested for a violent offence, with research demonstrating an 11-fold increase in the likelihood of being arrested for an aggressive offence for children suffering maltreatment and neglect in early life (English et al., 2002; Widom, 2017). Adverse childhood events, including, but not restricted to, childhood maltreatment (i.e. abuse and neglect), parental loss and incarceration, exposure to domestic violence, substance misuse and mental illness, are also well-established risk factors for psychiatric disorders (Petruccelli et al., 2019). Adverse childhood events are highly prevalent in children in contact with the criminal justice system (Craig et al., 2020) and in those with psychiatric morbidity. Rates of psychiatric morbidity are also high in children and adolescents in contact with the criminal justice system (Fazel et al., 2008).

Conduct disorder is the most common psychiatric disorder in childhood, and hence is used as an example of how psychiatric morbidity impacts brain development. In incarcerated young offender populations rates of conduct disorder can be as high as 60–70% (Beaudry et al., 2021). Functional magnetic resonance imaging (MRI) studies of children with conduct disorder show that they have a number of brain abnormalities. Such abnormalities include smaller grey matter volumes in limbic regions (e.g. the amygdala, insula and orbitofrontal cortex) as well as functional abnormalities in brain circuits responsible for emotional processing and emotional-reinforcement-based decision making (Fairchild et al., 2019). These abnormalities may account for the increased risk of reactive aggression seen in children with conduct disorder.

The above research unequivocally demonstrates that holding children as young as 10 criminal responsible is clearly not scientific. Indeed, such considerations raise doubts as to the appropriateness of attributing criminal intent at such an early age, the competence of those currently subject to youth justice proceedings to participate in them effectively and the legitimacy of subjecting children to any form of criminal sanction.

The concept of race and the current MACR

It is also unequivocal that childhood adversity is associated with socioeconomic disadvantage (Walsh et al., 2019). We know that communities that suffer from socioeconomic disadvantage are often Indigenous communities (Hunter, 2018), unskilled migrant communities from culturally and linguistically diverse backgrounds (Australian Government Productivity Commission, 2013) and marginalised communities – communities who face significant discrimination and racism.

It is imperative that the issues of racism and discrimination are examined when considering the minimum age of criminal responsibility. When the data on children in contact with the criminal justice system are examined, it is apparent that the current minimum age of criminal responsibility remains systemically racist (Trevitt & Browne, 2020).

In Australia, Indigenous children are the most vulnerable and disadvantaged in the criminal justice system, making up the vast majority of imprisoned children despite only representing approximately 5% of the general population (Australian Institute of Health & Welfare, 2018). In 2018–2019, 60% of all incarcerated children in Australia were Indigenous, and of all 10-year-olds imprisoned in 2020, 80% were Indigenous (Amnesty International, 2021). The reasons for Indigenous over-representation in incarcerated populations are complex (Cunneen, 2020) and beyond the scope of this paper. Consideration of the impact of colonisation, the practices that overtly and unwittingly support the racialisation and criminalisation of children and social, geographic and cultural differences as well as the phenomenon of racial threat (Pullin, 2018) are some of the areas considered in the current literature on the subject.

During the 2015–2016 year, there were 599 under-14-year-olds placed in detention in Australia. Of these, 67% (or 398) were Indigenous (Australian Institute of Health & Welfare, 2017: Table S78b). During the same period, there were 878 under-14-year-olds placed on community-supervision orders. Of these, 67% (or 589) were Indigenous children. The number of Indigenous children is even greater when we look at those aged 12 years or younger. Nationally, some 73% of children placed in detention and 74% of children placed on community-based supervision in the 10–12-year-old age bracket (inclusive) were Indigenous during the period 2015–2016 (Australian Institute of Health & Welfare, 2017: Tables S78b and S40b).

Additionally, Indigenous children were younger than non-Indigenous children when appearing before the court – comprising the majority of children (both male and female) before the courts in the 10–15-year-old age bracket. In fact, Indigenous males made up 73% of all males before the courts in the 10–12-year-old age bracket, and Indigenous females made up 60% of all females before the courts in the 10–12-year-old age bracket.

The available research shows that Indigenous children are less likely to receive the benefit of a diversionary option and are more likely to be arrested (rather than receive a court attendance notice), to have bail refused and to have their matter determined in court than are non-Indigenous youth (Cunneen, 2017).

The aforementioned systemic racism ensconces Indigenous children in the more punitive reaches of the juvenile justice system. For example, research indicates that Children’s Courts are more likely to impose custodial sentences on young people brought before them by way of arrest than by way of an attendance notice (summons), even when the seriousness of the charge and the criminal history of the defendant are controlled for (Allan et al., 2005; Kellough & Wortley, 2002).

Criminalising children is criminogenic

Raising the minimum age of criminal responsibility can eliminate the effects of the adverse use of police discretion for younger Indigenous children and their entrenchment in the juvenile justice system from a young age. Studies show that children arrested before the age of 14 are three times more likely to reoffend as adults than those children arrested after the age of 14 (Alltucker et al., 2006). Studies have also demonstrated that the younger children are when they encounter the criminal justice system, the more likely they are to reoffend and have other adverse life-outcomes (Dean et al., 2021). Furthermore, cumulative incarceration during childhood is independently linked to poorer physical and mental health outcomes in adulthood (Barnert et al., 2017).

The minimum age of criminal responsibility being set so low contributes to a cycle of imprisonment and reoffending amongst Indigenous children who are already disproportionately represented in the criminal justice system. Indigenous children face a system that is already geared against them; generations of racism and bias remain woven into the very fabric of our society and its various institutions including the criminal justice, education and health systems. Despite our concerted and collective efforts to stop it, systemic implicit racism persists. As a result, Indigenous children are locked up at 18 times the rate of non-indigenous children (Amnesty International, 2021).

Criminalising the behaviour of young and vulnerable children creates a cycle of disadvantage and forces children to become entrenched in the criminal justice system (Athanassiou et al., 2021). Research by McAra as part of the Edinburgh study indicated that even low-scale contact with the police was likely to cause an increase in recidivism for young people (McAra & McVie, 2007). This potentially illustrates the detrimental consequences of the labelling effect of any mandatory intervention adopted by justice systems (Farrington et al., 1978). Unlike mandatory measures employed by welfare and mental health services, mandatory measures employed by the justice system have the potential to encourage the child to develop an internalised identity as a criminal (Farrington et al., 1978; Liberman et al., 2014).

Tragically, with the criminalisation of children in some disadvantaged neighbourhoods being the norm, some of the stigma of a criminal identity appears to be attenuating (Hirschfield, 2008). Such external sanction may, as it were, in turn contribute to the entrenchment of the child’s internalised criminal identity, further escalating his or her risk of re-offending. Between 2011 and 2012, child offenders who were first subject to supervision orders under the youth justice system when aged 10–14 were more likely to experience supervision of all types in their later teens − 33% compared to 8% per cent for those first supervised at older ages (Australian Institute of Health & Welfare, 2013).

A staggering 94% of children imprisoned between the ages of 10 and 12 receive another prison sentence before they even reach adulthood. While the low minimum age of criminal responsibility is a significant factor for this high rate of recidivism, for the reasons detailed above, it is understood that multiple factors contribute to early conduct disordered behaviours. These include childhood experiences of adversity, temperament, parenting and psycho-social disadvantage to name a few. These adversities should not and cannot be addressed by the criminalisation of these children. We also know that three in five (60%) of those aged 10 at their first youth justice supervision were also in child protection.

Criminalising children does not reduce their likelihood to offend. Instead, it steers them on a path toward reoffending (Farrington, 2020). Studies show that the children who are forced into contact with the criminal justice system at a young age are also less likely to complete their education and to find employment and also have poorer health in adulthood (Barnert et al., 2017).

Humanitarian and economic perspectives

Having established that the current minimum age of criminal responsibility is unjust, unscientific and implicitly racist, it is salient to consider this law from a humanitarian perspective. As described above, the arguments for raising the minimum age of criminal responsibility include that the current minimum age of 10 years is inhumane.

Take a moment to imagine how your 10-year-old self would have felt to be arrested, put in handcuffs, hauled into the back of a paddy wagon in the Australian summer, questioned and kept overnight in a cell before talking to a lawyer you do not know for about 10 minutes and then appearing before a Court and potentially going to detention – a terrifying prospect. But what humanitarian rights would your 10-year-old self have?

Human rights law is pretty clear. The United Nations Committee on the Rights of the Child (UNCRC) has consistently said that countries should be working towards a minimum age of 14 years or older (UNCRC, 2019, paras 20–23). Australia has been repeatedly criticised by the United Nations, most recently by the Committee on the Elimination of Racial Discrimination, for failing to reform the current minimum age. The current minimum age of criminal responsibility contravenes the rights of the child and is considered inhumane.

In addition to being inhumane, criminalising children is also expensive. The cost- effectiveness of the current minimum age of criminal responsibility is the next aspect of the framework to be considered. Recognising that it is myopic and reductionistic to place monetary matters at the heart of an argument, using the author’s proposed framework for decision making, it is nevertheless relevant to consider the economic impact of having such a low minimum age of criminal responsibility. Financial arguments for raising the minimum age of criminal responsibility are compelling. The cost of incarceration is enormous. For example, in New South Wales (NSW), for each child, it is estimated to be about $1344 per day. Therefore, it costs almost half a million dollars to detain one child in NSW for one year.

When one considers the indirect costs of this group of children as they progress into adulthood the findings are alarming. Children with conduct disorder display various adverse life outcomes in adulthood, including mental health problems, criminality, substance misuse and problems in intimate partner relationships (Fergusson et al., 2005). Additionally, children with conduct problems in childhood are high service users of healthcare, social welfare and the criminal justice system, thus increasing indirect costs to society. Children with conduct disorders cost society 10 times the amount for non-conduct-disordered children (Scott et al., 2001). In children with high levels of conduct disorder, public costs were four-fold when compared to those with low-level conduct disorder. Most of the costs accumulate from inpatient care and criminal justice contact (Rissanen et al., 2022).

Further statistics show that as many as 70% of previously detained youths are rearrested within two years (Austin, Johnson, & Weitzer, 2005; Petrosino et al., 2010) – a statistic that demonstrates that criminalising children is an expensive yet ineffective solution. Studies show that treatment of disruptive behaviour disorders through interventions such as parenting programmes (Edwards et al., 2007; O’Neill et al., 2013), including parent management training and family-based psychosocial interventions, cognitive-behavioural-therapy-based interventions (Nystrand et al., 2021) and school interventions (Muntz et al., 2005), provide cost-effective treatment solutions, enhancing health education and financial trajectories for children longer term. Continuing the current costly criminalisation of children as young as 10 years defies economic sense (Sampaio et al., 2018, 2022).

Societal confusion – the concept of childhood versus our fear of children’s behaviour

Simply put, having such a low age of criminal responsibility is ludicrous, especially when one considers how children are otherwise treated/viewed and experienced. While it is tempting to digress into a discourse on the social constructionist angle of childhood, this will necessitate a much more detailed discussion that is itself complex. For example, Phillipe Ariès conceptualises childhood as a social construct, as opposed to other philosophers who conceptualise childhood as a stage distinct in and of itself or yet others who hold the view it is a predicament to be overcome (Giesinger, 2017). I have chosen to avoid this and simply, but factually, rely instead on the legal expectations we have of what children can and cannot do, to support my assertion.

As with the concerns about children owning pets like hamsters, our society is filled with laws and informal sanctions that consider a child’s developmental maturity. This is well recognised in other areas of Australian law. It is one of the reasons why children aged 10 are not permitted to operate motor vehicles or consent to medical care without parental/guardian involvement. They are not considered sufficiently mature to make decisions in relation to the purchase of alcohol and tobacco, apply for a credit card or get married without Court permission until 18 years of age. Yet culpability for behaviour that transgresses criminal law is attributed eight years earlier, at age 10.

So why is it that a society of intelligent, capable, moral people allows this? What is it that allows our politicians, and by extension each of us, to maintain a minimum age of criminal responsibility of 10 years?

I suggest the primary reason is fear, and while perhaps irrational in light of what we have just considered, it is nevertheless a powerful driver for upholding the ludicrous (Dolliver et al., 2018). Hegemonic arguments and propaganda proposing that raising the age of criminal responsibility will result in waves of youth crime, and present untold danger to society, abound (Roberts, 2004). We all know that fear makes our frontal lobes shut down and impairs our rational decision making. No matter how logical, rational or just people may be, when we feel anxious or scared we are unable to hear them reasoning with us.

Scholars in the field suggest that reforms to sentencing and juvenile transfer laws and more punitive treatments are ‘grounded in concerns about public protection and the belief there is no good reason to exercise leniency with young offenders’ (Steinberg & Scott, 2003, p. 1009; see also Goldson & Muncie, 2006). Public opinion on the rights and responsibilities of children and youth is described as ‘a confusing accumulation of inconsistencies’ (Cuncannan, 1997, p. 273; see also Coupet, 2000).

A humane, rational, economically sound and safe alternative

So, what are the alternatives? In considering this in consultation with my colleagues, it emerged that there is no simple answer, but there are answers.

Firstly, we need to look at other countries where the minimum age of criminal responsibility is at least 14, and the harmful behaviour of children or youth offending is better managed. In doing so, what we find are highly resourced welfare systems with excellent health checks, access to education and family and community support. Then, with the money we save by not criminalising children, we need to develop such welfare systems for ourselves (Sampaio et al., 2022).

A high-profile example comparison of this is the case of 5-year-old Silje Redegard, who was killed in 1994 by two young boys in Norway, a country that stringently avoids criminalising its children, with the case of 2-year-old James Bulger, who was killed in 1993 by two young boys in England. Notwithstanding that there are significant differences in each country’s youth justice systems and the two cases, stark differences in the approaches and outcomes are apparent. In the Norwegian case the identities of the child assailants were protected, and they were provided care by a child services agency rather than being punished. Although no verifiable evidence is readily available, reports indicate that neither of the Norwegian boys have since engaged in violence or criminal activities. By contrast, the child assailants in the latter UK case had extensive media coverage and were sentenced to detention in a young offender’s institution, with one of them being convicted of crimes and re-incarcerated since (Venables and another v News Group Papers Ltd and others [2019] EWHC 494 (Fam).

We also need to be wary of a policy approach derived solely from the evidenced base of ‘what works’ in youth justice literature – an approach that is the current practice in Youth Justice interventions in Australia and New Zealand where interventions target high-risk groups. The evidence for this approach is mixed, and hence interventions should be used with consideration of the limitations of an approach focused primarily on reducing recidivism; for despite the appeal of such so-called evidence-based policies, more recent evidence and experience suggest that this approach is unlikely to yield a tangible or sustained reduction in the harmful behaviour of children (Bouchard & Wong, 2018).

An alternative model needs to encompass the following broad principles:

• 1. Assess and respond to the needs of children who present with harmful behaviour or are at risk of engaging in harmful behaviour instead of focusing on offending and punishment.

All assessments and responses must be developmentally and culturally informed and must include an assessment of the child’s family, friends/peers, school and community.

Individual assessments of risk should incorporate structured professional judgement tools that include individual protective factors as well as risk factors and should be undertaken by people skilled in these assessments. Any risk assessment approaches used should be culturally appropriate and normed for the population they are being applied to. Risk assessments should not be used as the sole predictors of recidivism or future violence, especially as risk assessments can mask race in its practice and its outcomes (Cunneen, 2020).

All responses should have the best interests of the child at their core, be empirically based and be tailored to meet the needs of the child in his or her individual context.

• 2. Ensure self-determination of Indigenous communities in service design and delivery.

As enshrined in Article 1 of the International Covenant on Civil and Political Rights (ICCPR) (United Nations, 1966) and in Article 1 of the International Covenant on Economic, Social and Cultural Rights, all peoples have the right of self-determination (United Nations, 1966). This has particular significance for Indigenous Australians. As outlined in Professor Cunneen’s report, self-determination is critical to Indigenous communities achieving their economic, social and cultural goals, which the evidence demonstrates will lead to improved outcomes in the youth justice sector (Cunneen, 2018). It is imperative that the limitations of operationalising this right are recognised and addressed to ensure it is a tangible right. Further, it is necessary to move beyond the participation of Indigenous people in service development, to the Indigenous design of programmes and processes – designs that are tailored to meet the needs of specific peoples and communities. Our children’s voices, particularly our Indigenous children’s voices, must be included in this process.

• 3. Ensure the safety and wellbeing of children by supporting families, communities, schools and health services.

It is likely that the best return for investment will come from an increased focus on early years interventions. The harmful behaviour of children or youth offending is a symptom of a broader problem that frequently starts before birth, with maternal malnourishment, intrauterine drug and alcohol exposure, exposure to stress hormones, domestic violence and parental disadvantage, including criminality. Unsurprisingly, solutions include investment in interventions that help families to avoid abuse of children and to develop sustainable mutually beneficial relationships with professional agencies. Culturally informed early intervention approaches (e.g. Parent Management Training, Triple P (https://www.triplep-parenting.net.au/au/triple-p/), Incredible Years) and projects (https://incredibleyears.com/) similar to the Queensland Logan Together Project (https://www.logantogether.org.au/), or the United Kingdom’s Troubled Families Project (https://www.family-action.org.uk/troubled-families/) are examples of such solutions. Drawing upon, but not simply transposing, examples of whole of system approaches is imperative. For example, the Scandinavian approach to youth offending may provide valuable learnings for us (Storgaard, 2005).

• 4. Use restorative and culturally appropriate practices to respond to harmful behaviours by children.

In circumstances under which children are deprived of their liberty, this should be done as a measure of last resort and under a civil framework using either the welfare system for care and protection needs or the mental health system if there is a psychiatric illness associated with serious risk. Restorative and culturally appropriate practices as determined by the relevant community must be at the heart of the response. This approach is also enshrined in the UNCRC, which recognises that many children come into contact with plural justice systems, which may include customary or Indigenous systems that operate in parallel to the formal justice system. It recognises that restorative and culturally appropriate responses can be achieved through customary or Indigenous systems, which has the dual benefit of providing opportunities for learning by the State justice system and demonstrating respect for the traditions of Indigenous societies, which could benefit Indigenous children and communities (UNCRC, 2019).

• 5. Recognise the right to safety for all members of our community and victims of harmful behaviour by children.

We need to constantly remind ourselves and reassure each other that our fears are somewhat irrational. For example, no child under 14 was convicted of homicide, attempted homicide or manslaughter in Australia in 2018–2019. Instead, the most common convictions for children aged 10–14 years old were theft and unlawful entry crimes (Australian Bureau of Statistics, 2020). Behaviours in which factors such as developmental immaturity, peer pressure, emotional reactivity, social and economic disadvantage, parental supervision and community supports play a role. It is appreciated that many would struggle to consider non-criminal sanctions for a 10-year-old who committed a murder, yet the evidence supports that we must do so if we wish to keep ourselves and our children safe.

Some suggest that there should be exceptions regarding the minimum age of criminal responsibility based on the outcome of the offence. I am of the view that no exceptions should be made in terms of the seriousness of the offence and (thanks to Dr Delmage¹) I know that in fact only 26 out of 220 countries internationally stratify according to the seriousness of the offence. If we accept that developmental immaturity can affect decision making, and thus mens rea, irrespective of the type of offence committed, then we cannot make exceptions based on the seriousness of the offence.

There are also a number of types of behaviour that would ordinarily constitute common assault but which, through bad luck, result in the death of the victim, and it seems to be perverse to have one threshold for one outcome and another for another outcome as the mental capacity of the perpetrator may be the same in each case. Interventions may still need to be mandated, but this should, where necessary, be done via existing civil law. The system should only mandate a child to receive support if it is in their best interest and only as a last resort.

If we want the criminalisation of children to stop and for our world to be safer, we need to advocate for and actively support interventions that address the underlying causes of the harmful behaviours that children engage in. The evidence is overwhelmingly clear that the current minimum age of criminal responsibility does not accord with principles of procedural fairness; it is unjust. Nor does it align with the current developmental science literature; it is unscientific. It maintains systemic racism; it is expensive, and it flagrantly disregards human rights conventions.

Non-punitive whole of system restorative reforms have the potential to lead to tangible transformative change. Drawing on the experience of other countries to develop restorative focused, culturally appropriate, legal, welfare, education and health systems offers an achievable alternative to maintaining the current unacceptable minimum age of criminal responsibility.

Therefore, we must ourselves take responsibility and do what is best for our children by raising the minimum age of criminal responsibility. This paper evidences that to do so is just, scientific, anti-racist and economical. Raising the minimum age of criminal responsibility accords with what our humanity, in all its complexity, demands.

Ethical standards

Declaration of conflicts of interest

Yolisha Singh has declared no conflicts of interest.

Ethical approval

This article does not contain any studies with human participants or animals performed by the author.