Juvenile justice

With 1.3 to 1.5 million children detained annually, the failures of juvenile justice systems are unfortunately evident. States must rigorously enforce juvenile justice principles to protect children from the violent and harmful conditions of custody that affect their physical and mental well-being. Prioritizing the child’s best interests involves collecting reliable data on their needs and implementing restorative approaches.

Definition of juvenile justice

Juveniles are considered to be persons “who have not fully matured or developed and at a minimum include children up to the age of 18 but sometimes to the age of 21” (UNICEF, 2010). These children can encounter the law and the justice system as either victims and witnesses, or as children accused or convicted of crimes (OHCHR and children, 2019). As such, their cases are processed through a juvenile justice system. The juvenile justice process operates according to the premise “that youth are fundamentally different from adults, both in terms of level of responsibility and potential for rehabilitation” (Youth Gov, n.d.).

Therefore, specialised procedures for juveniles range from specialized courts that focus on the needs and rehabilitation of young offenders, age-specific procedures, social services aimed at support and rehabilitation, community service to prevent deeper involvement in the justice system, and measures to keep records confidential to protect young individuals’ futures. The juvenile justice system seeks to avoid incarceration for children whenever possible and to promote their reintegration into society as constructive members (Youth Gov, n.d.).

Principles of juvenile justice

Children are “guaranteed protection and fundamental human rights through several international and regional instruments concerned with child justice” (UNICEF, 2021).  Children can encounter the law as a witness or a victim or in conflict with the law as accused of or recognized as having committed a criminal offence. The rights of these children are, inter alia, guaranteed by the Convention on the Rights of the Child

Key principles outlined by the Committee on the Rights of the Child to guide juvenile justice include:

  • Non-discrimination: States parties must take all necessary measures to ensure that children in conflict with the law are all treated equally; 
  • Best interests of the child: In decisions taken within the administration of juvenile justice, the best interests of the child must be the primary consideration; 
  • Prevention of delinquency: States parties must develop effective national policies and programmes for the prevention of juvenile delinquency; 
  • Rights to be heard: Children have the right to express their views freely in all matters affecting them, at every stage of the process of juvenile justice;
  • Dignity and worth: Children have an inherent right to dignity and worth, which must be respected and protected throughout the entire process of dealing with the child; (UN Committee on the Rights of the Child, 2007).

As a general rule, a policy must deal with these core elements: “the prevention of juvenile delinquency; interventions without resorting to judicial proceedings; the minimum age of criminal responsibility and the upper age limits for juvenile justice; the guarantees for a fair trial” (UN Committee on the Rights of the Child, 2007).

Procedures of juvenile justice 

The procedures for handling juvenile justice cases are designed to respect the rights and specific needs of young people and as such the following procedures are put in place for juveniles:

  • Privacy: A child’s right to privacy should be respected at all stages of the justice process.
  • Notification: When a child is apprehended, their parents or guardians must be notified immediately.
  • Avoiding formal trials: Where appropriate, authorities should handle cases without resorting to formal judicial proceedings.
  • Specialized training: Law enforcement and others dealing with juvenile cases must receive proper training to handle young offenders appropriately.
  • Detention as a last resort: Detention pending trial should only be used as a last resort.
  • Alternative measures: A range of measures should be considered to minimize the use of institutionalization.
  • Care in institutions: If institutionalization is necessary, juveniles should receive care that includes education and vocational training to help them lead constructive and productive lives post-detention (UN General Assembly, The Beijing Rules, 1985).

For example, in Canada, alternative measures for juveniles can be: making apologies through written or personal contact with the victim, performing community service for a non-profit agency or participating in educational programs in relation to the harm committed (Juristat, 1999).

Juvenile justice system failures and insufficient data

Despite international guidelines and national policies in relation to juvenile justice, many failures to children’s rights are noticeable and must be highlighted in this section. First and foremost, the most worrisome failure is that children in contact with or in conflict with the law are often unaware of their rights and/or not in a position to claim them (OHCHR and children, 2019). Furthermore, violence inflicted on children remains widespread at all stages of deprivation of liberty in the justice system.

The same is true for migrant children, around 330,000 of whom are detained each year for migration-related reasons. Children detained as a result of armed conflict also remain in a perpetual cycle of violence (UN General Assembly, 2019).

An added concern is that detained children are also placed in detention centres marked by overcrowding and significant levels of abuse, neglect, and violence, along with the lack of hygiene standards, air and sunlight, privacy, adequate health care, recreational and educational opportunities, and gender-sensitive facilities (UN General Assembly, 2019). Many children are victims of blackmail, harassment, sexual violence, and rape while in detention, such was the case for the many young girls detained in the Los Angeles juvenile jails (The Guardian, 2023).

The collation of factual data would enable monitoring, to identify the children in a given country who are affected and would hold the judiciary and the State to account for the damage caused and its impact on children’s well-being. Unfortunately, the devastating impact that detention and incarceration have on children’s physical, emotional, and mental development, and the actual number of children in contact/conflict with the law, remains unknown or incomplete in the administrative data systems. 

In the absence of such data, understanding the extent to which children are exposed to differing detention regimes is impossible, nor is it possible to effectively monitor and evaluate the impact of the corresponding policies and programmes on children’s wellbeing (UNICEF, 2021).

A necessary shift towards restorative justice 

A restorative approach is best suited to children in contact with or in conflict with the law. Restorative justice refers to an approach “addressing harm or the risk of harm through engaging all those affected in coming to a common understanding and agreement on how the harm or wrongdoing can be repaired and justice achieved” (European Forum For Restorative Justice, 2024). 

Children should be learning from this process without being subjected to the severity of an adult prison, by altering their decisions and life course in the future, and without having any exposure to the juvenile justice system or the criminal justice system (Youth Gov, n.d.; Terre des hommes, 2020).

Every year, at least 410,000 children are held in pre-trial detention centres and prisons. This indicates that detention as part of the administration of justice is grossly overused (UN General Assembly, 2019). Furthermore, there is overwhelming evidence that demonstrates that incarceration is an ineffective strategy for diverting juveniles from delinquency and that elevated rates of juvenile incarceration do not improve public safety (The Sentencing Project, 2023). 

Indeed, restorative justice can prevent future crimes from being committed by juveniles. As an example, out of 600 mediations held at the municipality level where juveniles participated in mediation, only 20 had incidences of recidivism (SAGE Journals, 2019).

A long road to recovery for children

Protecting the best interests of the child implies that the traditional objectives of criminal justice, such as repression/retribution, must give way to the objectives of rehabilitation and restorative justice in the treatment of children in contact/conflict with the law (UNICEF, 2021). An integrated system of care is needed to address the mental health and related needs of juveniles in contact/conflict with the law, through comprehensive community services and support (Resource Center Partnership, 2013). 

Juvenile defence lawyers and international children’s rights organisations are an essential shield against injustice and act as a crucial counterweight in a system that can lead to harmful outcomes for children and thus, must be strengthened so that children in the juvenile justice system receive the necessary support and supervision (Resource Center Partnership, 2013). As an example, Belgium’s juvenile system has been recognised as one of the best in the world and stands out for the provision of free youth attorneys (The Bulletin, 2016).

Indeed, States Parties should promote and fully engage children and parents, community leaders and other key actors such as NGOs, probation services and social workers in the development and implementation of prevention programmes (UN Committee on the Rights of the Child, 2007). 

To this end, States must above all identify the root causes of the deprivation of liberty of children and should invest significant resources in addressing inequalities and providing support to families to empower them to foster the physical, mental, moral and social development of their children, including children with disabilities (UN General Assembly, 2019).

Written by Moïra Phuöng Van de Poël

Internally proofread by Aditi Partha 

Last updated on 13 May 2024

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