Abstract
This chapter focuses on the key themes in relation to the function of the criminal jurisdiction of Children’s Courts across the various states and territories in meeting the requirements of important international legal instruments and conventions. The generally agreed aims of juvenile justice mechanisms and Children’s Court criminal processes in compliance with the Beijing Rules are to treat children and young people less harshly than adults, taking account of their circumstances and promoting their reintegration into society and their rehabilitation. The history of juvenile justice in Australia and in other Western countries indicates various swings of the pendulum between ‘needs’ and ‘deeds’ and, more recently, some new approaches such as restorative justice and therapeutic or problem-solving courts. The limitations in relation to the participation of children and young people in these processes, and in Children’s Court proceedings, and the need for a good evidence-base and reliable data are outlined.
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- 1.
Article 40 of the Convention requires that ‘States Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society’.
The Beijing Rules emphasise the importance of promoting the well-being of the children and young people involved, their rehabilitation and reintegration and the need for a ‘proportional’ response which should take account of the gravity of the offence and their ‘personal circumstances’.
- 2.
As Alder and Wundersitz (1994: 3–4) pointed out: ‘These terms provide a short-hand way of capturing variations in emphasis between different approaches to the treatment and processing of young offenders. .. the so-called “welfare” and “justice” models are in fact conceptual tools, and no juvenile justice system has ever fitted exclusively into either one or other of these categories’.
- 3.
It is worth noting, however, that the welfare approach in Finland, at least, has meant dealing with ‘troubling and troubled young people from a psychiatric rather than penal perspective’ and resulted in much higher numbers of young people in Finland being accommodated within mental health institutions or ‘reformatories’ (Pitts and Kuula 2005: 156).
- 4.
Judge Marien gave the example of a 13 year old, living on the streets because of ongoing domestic violence and/or parental drug and alcohol abuse, who commits offences for survival and asks whether ‘this “offending behaviour” requires a response within the criminal justice system (with the consequent stigmatising of the young person and the possible prejudicing of their future employment prospects) or [whether] the child should be dealt with within the child welfare system? Is there a risk in “criminalising” the behaviour of a young person with serious welfare needs? Alternatively, is there a risk that we may be “welfarising” our response to the criminal behaviour of young people’.
- 5.
Youth justice conferencing has been operating in various states in Australia since the mid 1990s for some, adapted from the New Zealand model of family group conferences and influenced by the Braithwaite restorative justice model. See Alder and Wundersitz (1994), Bargen (1996); Braithwaite (1989); Daly and Hayes (2001), and Maxwell and Morris (1996).
- 6.
In New Zealand, the ‘Youth Court judge cannot impose any measure or sanction unless a family group conference has been tried. New Zealand is therefore often represented as the “beacon” country with the most far-reaching restorative justice system for juveniles’ (Walgrave 2004: 566).
- 7.
A report by the Australian Institute of Criminology in 2009 reported that ‘Indigenous juveniles were 28 times more likely than non-Indigenous juveniles to be detained in a juvenile justice centre’ (Taylor 2009: 5). A recent NSW report also found that there were high rates of drug and alcohol use, mental illness and parental imprisonment among juveniles in custody but that these were higher among indigenous compared with non-Indigenous young people’ (Crawford 2011).
- 8.
See National Drug Court Institute and the National Council of Juvenile and Family Court Judges website and Exploring the Evidence: The Value of Juvenile Drug Courts and http://www.ncjfcj.org/resource-library/publications/substance-abuse.
- 9.
Among the 16 Strategies of Juvenile Drug Courts:
1.Engage all stakeholders in creating an interdisciplinary, coordinated, and systemic approach to working with youth and their families.
2.Develop and maintain an interdisciplinary, non-adversarial work team.
4.Schedule frequent judicial reviews and be sensitive to the effect that court proceedings can have on youth and their families.
6.Build partnerships with community organizations to expand the range of opportunities available to youth and their families.
7.Tailor interventions to the complex and varied needs of youth and their families.
8.Tailor treatment to the developmental needs of adolescents.
10.Create policies and procedures that are responsive to cultural differences and train personnel to be culturally competent.
11.Maintain a focus on the strengths of youth and their families during program planning and in every interaction between the court and those it serves.
12.Recognize and engage the family as a valued partner in all components of the program.
13.Coordinate with the school system to ensure that each participant enrolls.
14.Design drug testing to be frequent, random, and observed. Document testing policies and procedures in writing.
15.Respond to compliance and noncompliance with incentives and sanctions that are designed to reinforce or modify the behaviour of youth and their families.
Source: Ashcroft et al. (2003); see also Hora et al. (1999). Juvenile drug courts: Strategies in practice. Washington, DC: U.S. Department of Justice, Office of Justice Programs
- 10.
Article 12 – participation principle; see also Cashmore (2002) and Seen and Heard Report (ALRC and HREOC 1996; Treseder 1995).
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
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Cashmore, J. (2013). Juvenile Justice: Australian Court Responses Situated in the International Context. In: Sheehan, R., Borowski, A. (eds) Australia's Children's Courts Today and Tomorrow. Children’s Well-Being: Indicators and Research, vol 7. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-5928-2_12
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