While even very young children may know the difference between right and wrong (my three-year-old child knew he was wrong when he bit another child), their capacity to judge consequences is limited.
For example a child of 13 can physically say ‘yes’ to having sex but he or she cannot consent legally: the law acknowledges that a child under the age of 13 might say ‘yes’ without fully understanding the consequences. But the law does not recognise the same lack of full understanding if that 13-year-old gets involved in other potentially harmful and criminal behaviour. Every child over the age of 10 is treated as being as responsible as an adult for their criminal actions.
In 2005, the United States Supreme Court abolished the death penalty for those who murdered when they were under the age of 18. Writing the 5-4 majority decision, Justice Anthony Kennedy cited a body of sociological and scientific research that found that juveniles had a lack of maturity and sense of responsibility compared to adults. He cited studies that showed that adolescents are over-represented statistically in virtually every category of reckless behavior; they are more vulnerable to negative influences and outside pressures, including peer pressure; they have less control, or experience with exercising control, over their environments. Adolescent behaviour has a universal biological cause which scientists have only recently begun to understand. Along with everything else in the body, the brain changes significantly during adolescence. The small area of the frontal lobe located behind the forehead, the ‘prefrontal cortex’, controls the brain’s most advanced functions. It allows us to prioritise thoughts, imagine, think in the abstract, anticipate consequences, plan, and control impulses. The Los Angeles-based university UCLA brain research team, led byElizabeth Sowell , found that this frontal lobe undergoes more change during adolescence than at any other stage of life. In addition to the neurological ‘shortfall’, adolescents also undergo dramatic hormonal and emotional changes. This hormone increases tenfold in adolescent boys.
Ignoring the science
The evidence thus supports the assertion that adolescents are less morally culpable for their actions than competent adults. Yet the criminal justice system ignores the science to react to the emotionally charged demands of the media.
In a recent report about child defendants, the Royal College of Psychiatrists stated:
In addition to the limitations adolescents experience in understanding the consequences of their actions, they are also expected to participate in a court system that is both complex and complicated. In 2004 the European Court of Human Rights reversed the conviction of an 11-year-old boy tried in Liverpool Crown Court for robbery. In its judgment the European Court stated
[The applicant] was under the impression that he would be returning to his Foster/Remand placement with his foster father, who was present at Crown Court. The European court made it clear then that if the UK wanted to include children in a criminal justice system those children must be able to ‘effectively participate’ in the proceedings that have consequences for a lifetime, including conducting the hearing in such a way as to reduce as far as possible his feelings of intimidation and inhibition.
In May a jury at the Old Bailey, London’s Central Criminal Court for England and Wales, found itself enquiring into the exact details of what physically had occurred when three children of primary school age were playing together outside during half term. The two defendants, both boys, were aged 10 years. The Court of Appeal in its judgment stated it was unable to leave the case
The system is not just incomprehensible to young children. ‘When I was taken to Court I didn’t understand anything that was going on. I felt like I was on trial for murder and this was just the youth court … If I had been at court aged 10, I think I would have lost it, I would have been physically and mentally fucked up, I would have got post-traumatic stress disorder. I would have understood things much better if things had been presented in a way a kid would understand. The role of the courts is to seek the truth. If we want to learn more about the inner thoughts and experiences of our children we need new ways of listening, not inquisitions.