Restorative Justice through a Children's Rights Lens

Abstract

Restorative justice is an alternative to the formal criminal justice system which focuses on repairing the harm caused to the victim of the offence, effecting reconciliation between victim and offender, and the re-integration of the offender. Its use is widespread in national youth justice systems. This article will analyse the use of restorative justice in connection with offending by children. It will be argued that despite evidence of endorsement by the Committee on the Rights of the Child, the fundamental concepts of restorative justice are at odds with a children's rights model of youth justice as required by international standards. Not only do similar concerns about due process rights exist for children as for the adult system, it is difficult to reconcile the best interests of the child standard with the victim focused approach of restorative justice, and there are doubts as to whether children have sufficient maturity for remorse and reintegration.

Offending Girls and Restorative Justice: A Critical Analysis

“…This is particularly problematic given that young people belong to a 'category of social differentiation that brings with it structural inequalities of its own that then articulate with processes of victimisation and criminalization' (Phoenix, 2016: 135). For young people in conflict with the law, these processes expand across poverty, exclusion from education and victimisation (Lynch, 2010;McAra and McVie, 2010;Webster, 2019). Recognising the social harms and injustices young people are subjected to, therefore raises serious questions concerning the appropriateness of attributing a young person to 'an ''offender'' identity in a formal ''restorative'' process whilst harbouring knowledge of the same child's ''victim'' status' (Cunneen and Goldson, 2015: 144).…”

Is Restorative Justice Conferencing Appropriate for Youth Offenders?

“…Despite the rationales for utilising RJC for youth offenders, there are reasons to question the degree to which limited developmental and cognitive capacities may act as an impediment in achieving restorativeness, sincerity of apology, and reducing reoffending (Daly, 2003;Haines, 2000;Hayes and Hayes, 2008;Lynch, 2010;Maruna et al, 2007;Newbury, 2011).…”

Is restorative justice conferencing appropriate for youth offenders?

“…Third, they are also congruent in the exhibiting of authority and power backed up by threat or reality of punishment. Research by Dumortier (2003: 198) speaks to this last point in finding that '[e]ven certain minors who see themselves as being innocent are prepared to accept mediation in order to avoid any further legal procedure', and such fear of punishment may be 'motivational' enough for youth offenders to decide to participate in RJC following 'advice' from authority figures (Lynch, 2010).…”

“…Several scholars have suggested that problems with RJC in terms of restorativeness, sincerity of apology and reoffending may be attributed to limited capacity and immature characteristics of youth offenders (Daly, 2003; Haines, 2000; Hayes and Hayes, 2008; Lynch, 2010; Maruna et al, 2007; Newbury, 2011). A substantial body of literature demonstrates differences between youth and adult offenders in many developmental aspects (Cauffman and Steinberg, 2012; Richards, 2011; Scott and Steinberg, 2008b).…”