THE LEGAL STATUS OF JUVENILES
The youth justice system deals with children aged 10-17 inclusive alleged to have committed a criminal offense. As described previously, arrangements for dealing with this group have, since 1989, been completely separate from those that pertain to children in need of care and protection. The youth justice system is accordingly in vertical alignment with provisions for adult offenders rather than aligned horizontally to other children’s services.
The divorce between justice and care is problematic given the shared characteristics and intertwined histories of disadvantage, victimization, poverty, and complex needs of children who come to the attention of criminal justice agencies and care services (Curtis 2005). Children looked after by the local authority are six times more likely be subject to a formal youth justice disposal than the general 10-17 population (Department for Education 2015); conversely, more than a third of boys in young offender institutions report having been in care (Redmond 2015). But the distinct nature of the arrangements for dealing with each cohort creates a dichotomous dynamic that tends to encourage mainstream services to relinquish responsibility to criminal justice agencies where adolescents display problematic behavior. Equally, the involvement of youth justice agencies tends to reduce the perceived need for mainstream intervention (Centre for Social Justice 2012).
Although vertically aligned to it, youth justice is formally distinct from the adult system, having dedicated institutional arrangements, a specialist workforce, and a discrete range of sanctions (Bateman in press). This distinctive nature of youth justice law is however circumscribed: as described later, children continue to appear in adult courts, specialism does not all extend to all youth justice agencies and the legislative framework is largely derived from that which applies to adults. It has been argued that this close correspondence promotes an ethos in which punishment tends to dominate over other considerations more appropriate to childhood status (Haines and Case 2015).
The piecemeal development of youth justice has led to the accumulation of a range of principles that embody competing rationales, leading to a lack of clarity as to the system’s purpose (Fergusson 2007). Section 44 of the Children and Young Persons Act (CYPA) 1933 requires that courts regard the welfare of the child and continues to apply them in criminal proceedings despite deriving from a period when proceedings for care and crime were heard in the same court (Curtis 2005). The sentencing framework introduced by the Criminal Justice Act 1991, on the other hand, is predicated on proportionate punishment so that offense seriousness is the ‘starting point’ in determining what sanctions are imposed (Sentencing Guidelines Council 2009: 3). More recently, the CDA has established that the principal aim of the youth justice system is the prevention of offending and reoffending by children and young people. Ostensibly introduced as a mechanism for resolving inherent tensions between welfare and justice, it arguably does little in that regard, since it leaves open the question of how children’s offending is best prevented and whether the appropriate focus is the short or long term (Nacro 2003). Nearly half of magistrates do not take into account the impact on reoffending when determining sentences (Audit Commission 2004) and three quarters of youth practitioners report that it is ‘difficult to find evidence of ‘what works’ for certain areas of their work’ (National Audit Office 2010: 36).
The fluid amalgam of welfare, punishment, and rehabilitation no doubt helps to explain how the treatment of children who break the law alters from one period to another without any necessary corresponding modification in the underlying statutory provisions. It has also allowed an element of divergence between England and Wales, despite the two countries constituting a single jurisdiction: the Welsh government’s youth crime strategy promotes a ‘children first, offender second’ agenda that is not present in any explicit form in England where a more offense-oriented focus has tended to prevail (Haines 2010).