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Spare the child

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When set against the Referendum, Climate Change, Inflation and Interest Rates, the Age of Criminal Responsibility may seem a minor issue. Yet it is of vital concern to children who are our future. The State Attorneys General have now met to seek agreement on raising the age. And the Victorian Premier has promised to raise the age in Victoria to 12 years old regardless of the national decision. His decision is important as a step in building a justice system on the foundations of evidence and respect. The nomination of 12 rather than 14, however, is distressing because it is supported neither by evidence nor respect. 

The reasons for raising the age until at least fourteen years old are strong. Children are not fully responsible for their actions until that age, and even beyond it. The procedures involved in laying and pursuing criminal charges are harmful both to children and to the society they will re-enter. There are also better ways to hold children accountable for their actions and to help them come to maturity.

The treatment of children in criminal law traces back to a time when children were seen and represented as little adults. This was also intensified by the Catholic teaching that children from the age of seven could commit a mortal sin.  Allowance was made for children’s behaviour at home but not in society. In practice that attitude was tempered over centuries. Only relatively recently has the difference between children and adults been grounded in research into the development of the human brain which is incomplete into the early twenties. Crucially for determining the age of criminal responsibility, the immaturity of parts of the brain associated with cognitive function, impulse control, reasoning and recognition of the consequences of action, diminish children’s responsibility for their actions. It is not surprising that children who have come under the justice system have been found to suffer more than their peers from cognitive impairment, slower neural development and from mental illness.

In Victoria the age of criminal responsibility has been raised only to twelve years old, with exceptions for even younger children in the case of serious breaches of the Law. The age will be raised to 14 after the next Election. That the Government has yielded to pressure is regrettable. In terms of children’s growth to maturity the decision is unreasonable and damaging. From the age of 12 to 14, children are moving into adolescence, a transition time vital for their development into responsible adults. They are also moving from primary to high school, a period associated with anxiety and the building of new relationships. It is also a time of emotional turbulence in which children become impulsive, seek sensation, are strongly influenced by their peers and are only beginning to develop abstract thinking. During this time they need reassurance from significant adults in their lives and stable relationships.

Seen from this perspective, Involvement in criminal proceedings and the custodial sentences that can follow can only impede children’s growth into responsibility. The trauma of the process and the pressure that it puts on their relationship with family and with friends will inhibit their growth, impede their formation of mature relationships, intensify the effects of disadvantage which affects most people who come into the justice system, and make it more likely that they will reoffend and return to jail as adults. The costs to society will be great. That they should be held criminally responsible for some actions and not for others defies neurological evidence

Better ways of responding to children’s antisocial behaviour have been trialed both internationally and in Australia. These have in common that they assist children to take responsibility for their actions by focusing on them as persons. They help children to understand the consequences for other people of what they have done, to address the effects of disadvantage that have affected their action, and to build respectful relationships instead of breaking them. The justice embodied in any proper response designed to help children, the victims of children’s misbehaviour and society at large, is restorative and not criminal justice.


'As society’s chosen response to bad conduct by children or adults, imprisonment is both harming and self-harming.'


In all societies a few children will act in a way that poses a serious threat to society. They have often suffered from disadvantage and trauma. Such children should be housed securely in small units, as home-like as possible, staffed by trained staff and supported by programs designed for healing and growth. The aim of every intervention should not be on punishment but on the good of children and on their growth into responsible adults.

Seen within this context the raising of the age of criminal responsibility for children will be an important step for the children themselves and for their future, especially if it leads to processes focused on building human relationships designed to remedy the effects of early disadvantage and to encourage the taking of responsibility.

Raising the age of criminal responsibility for children, however, is only the beginning of reform of the justice system. It should also make us ask how entry into the justice system will affect older adolescents whose responsibility is limited by their brain immaturity, and indeed how it will affect anyone. The emphasis on incarceration and punishment is detrimental both to the persons imprisoned and to society as a whole. A large proportion of people remanded and convicted of crimes come from a relatively few regions conspicuously disadvantaged in other respects. Imprisonment with its separation from family and friends, the stigma and effect on self-esteem, and the difficulties of finding accommodation and work on release mean that many people will reoffend and again be imprisoned.

The system of incarceration is self-feeding, counter-productive and expensive to run. Prisons become the way in which society deals with the mentally ill and disadvantaged. A system based on the growth and rehabilitation of people who have offended, designed to help people take responsibility for what they have done, and is sufficiently demanding to recognise the harm caused by the offense, would be far preferable. Of course, some offenders who threaten serious harm to the community may need to be detained. But this confinement should also be in small institutions with trained staff and designed to change behaviour.

As society’s chosen response to bad conduct by children or adults, imprisonment is both harming and self-harming.




Andrew Hamilton is consulting editor of Eureka Street, and writer at Jesuit Social Services.

Main image: Child's hand on a blue chainlink fence. (Getty images)

Topic tags: Andrew Hamilton, Criminal responsibility, Rehabilitation



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Existing comments

Perhaps it is the parents, not the children, who require counselling and behavioural change.

john frawley | 05 May 2023  

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