Theorising Children's Rights in Youth Justice: The Significance of Autonomy and Foundational Rights

Abstract

This paper develops a theoretical approach to children's rights in youth justice, located within a wider rights‐based theory of criminal justice which emphasises the centrality of citizens' autonomy. Understanding what is special about children's rights in the youth justice system requires an understanding of how children's autonomy differs from that of adults. One difference is that within the legal system children are not considered to be fully autonomous rights‐holders, because childhood is a time for gathering and developing the assets necessary for full autonomy. These assets should be protected by a category of ‘foundational’ rights. It is argued that an essential component of a rights‐based penal system for children is that it should not irreparably or permanently harm the child's foundational rights. The concept of foundational rights can then underpin and strengthen international children's rights standards, including those relating to the minimum age of criminal responsibility, differential sentencing for children and adults and a rights‐based system of resettlement provision.

Selected Aspects of Social and Legal Protection of Children: Expert Approach versus Public Opinion

“…A similar statement can be found in Hollingsworth (2013), who adds that childhood is the period of growth into complete autonomy and thus children are not to be taken as fully autonomous. Arthur (2012) and McDiarmid (2013) extend this argument by saying that children making decisions are less competent to assess whether their decision and their subsequent action is clearly correct or incorrect.…”

“…About one third of the respondents would prefer lowering the criminal liability age to 14 while another third agreed with the currently valid limit of 15 years. About one tenth would increase the limit even further to 16 The expert discourse (for instance, Elliott, 2011;Farmer, 2011;Hollingsworth, 2013;Svatoš, 2013;Bateman, 2014) rather take a defensive approach. Thus, regarding the boundary of criminal liability in the Czech Republic, we found the assumed contradiction between the popular and the expert discourse.…”

Recognising children's citizenship in the youth justice system

“…In response to these concerns about discussions of children's rights, Nassbaum & Dixon (2012) there is a consequent moral need to protect children while they develop these capacities. Hollingsworth (2013) suggests that a system of criminal justice will be illegitimate if it permanently restricts the child's ability to develop the capacities necessary for future global autonomy. To ensure that children can develop into fully autonomous right-holders when they achieve majority, the state must give special status to 'foundational rights' that support the conditions that make it possible for children to have a fully autonomous life at a point when majority is acquired (Ibid.).…”

Changing legislation and its effects on inclusive and special education: Scotland

“…In order to redress this imbalance, they have argued that greater efforts should be made to incorporate the principles of the UNCRC into domestic education policy and practice. However, a warning note has been raised by Hollingsworth (). In the context of youth justice, she maintains that it is important to recognise the way in which children's autonomy differs from that of adults.…”