‘Condemn a Little More, Understand a Little Less’: The Political Context and Rights’ Implications of the Domestic and European Rulings in the Venables‐Thompson Case
| Published date | 01 September 2000 |
| Date | 01 September 2000 |
| DOI | http://doi.org/10.1111/1467-6478.00162 |
| Author | Phil Scraton,Deena Haydon |
JOURNAL OF LAW AND SOCIETY
VOLUME 27, NUMBER 3, SEPTEMBER 2000
ISSN: 0263-323X, pp. 416–48
‘Condemn a Little More, Understand a Little Less’: The
Political Context and Rights’ Implications of the Domestic
and European Rulings in the Venables-Thompson Case
Deena Haydon* and Phil Scraton**
In 1993 Jon Venables and Robert Thompson were found guilty of the
abduction and murder of two-year-old James Bulger. Aged ten at the
time of the offence, the children were tried in an adult court before a
judge and jury amidst a blaze of publicity. They were named by the
trial judge and sentenced to detention at Her Majesty’s Pleasure
[HMp]. The Home Secretary set a minimum tariff of fifteen years
imprisonment. In December 1999 the European Court of Human
Rights held that, in the conduct of the trial and the fixing of the tariff,
the United Kingdom government was responsible for violating the
European Convention on Human Rights. This article maps how the
case became a watershed in youth justice procedure and practice
influencing Labour’s proposals for reform and the 1998 Crime and
Disorder Act. Examining the progression of appeals through the
domestic and European courts, it explores the dichotomous
philosophies separating the United Kingdom and European
approaches to the age of criminal responsibility, the prosecution and
punishment of children, and the influence of political policy on judicial
decisions. Finally, the `backlash’ against `threatening children’, the
affirmation of adult power and knowledge, and the implications of the
European judgments in the context of a rights-based agenda are
analysed.
416
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* School of Education, Edge Hill University College, Ormskirk, Lancashire
L39 4QP, England
** Centre for Studies in Crime and Social Justice, Edge Hill University
College, Ormskirk, Lancashire L39 4QP, England
This article is informed by the work of the Young People, Power and Justice Research
Group at the Centre for Studies in Crime and Social Justice, particularly our collaboration
in publishing ‘Childhood’ in ‘Crisis’? The encouragement of our supportive colleagues
at CSCSJ is much appreciated. The article was first presented, in part, as a paper to the IV
International Congress on the Child, Montreal, October 1999.
Childhood is a highly contested terrain. It suggests biological essentialism;
the physical growth of the child to ‘full maturity’ mirrored by an invariant
sequence of intellectual, psychological, social and moral development. Jean
Pia`get’s commitment to the fundamental principle that childhood is a time-
span of growth towards adulthood – contoured by discrete, age-related,
universal stages of development, each defined by specific cognitive
structures or ways of understanding the world – has left an enduring legacy.
Within derivative developmental psychology, children’s actions and
interactions are interpreted as ‘symbolic markers of developmental progress
.. . prefigur[ing] the child’s future participation in the adult world’ as
‘primitive concepts’ give way to ‘sophisticated ideas’.
1
It is assumed that,
through ‘natural’ development, the child’s egocentrism, dependency,
incompetence, and irrationality eventually give way to adult independence,
competency, ability to reason and act responsibly.
Pia`get’s ‘voracious’ and ‘rigid’ empiricism reflected a ‘genetic
epistemology’ which ‘through its measuring, grading, ranking, and assessing
of children’ has ‘instilled a deep-seated positivism into our contemporary
understandings of the child’.
2
Theories of child development ‘both supported
and were supported by child rearing/training practices, bridging the gap
between theory and practice, parent and child, teacher and pupil, politician
and populace’.
3
As Mayall demonstrates:
the notion that children are best understood as incomplete, vulnerable beings
progressing with adult help through stages needed to turn them into mature
adults . .. has great power both theoretically and as a force shaping children’s
lives, through the operation of health, welfare and legal policies and services.
4
Stimulated by the pivotal work of Arie`s,
5
however, the biological
essentialism of Pia`get’s legacy has been challenged. This has resulted in a
complex contemporary debate which centres on the social fluidity, temporal
context, and cultural variability of childhood. Within this debate, childhood
is variously portrayed as a ‘social artifact’,
6
a ‘social construction’,
7
a
‘discrete structural division’,
8
and a ‘social structural’ relation.
9
While there
are distinguishing emphases between these categories, they share a
417
1 A. Prout and A. James, ‘A New Paradigm for the Sociology of Childhood?
Provenance, Promise and Problems’ in Constructing and Reconstructing Childhood,
eds. A. James and A. Prout (1997) 11.
2 A. James, C. Jenks, and A. Prout, Theorizing Childhood (1998) 17, 19.
3 Prout and James, op. cit., n. 1, p. 9.
4 B. Mayall, ‘Introduction’ in Children’s Childhoods Observed and Experienced, ed.
B. Mayall (1994) 3.
5 P. Arie`s, Centuries of Childhood (1962).
6 N. Postman, The Disappearance of Childhood (1994) xi.
7 C. Jenks, Childhood (1996).
8 B. Goldson, ‘‘‘Childhood’’: An Introduction to Historical and Theoretical Analyses’
in ‘Childhood’ in ‘Crisis’? , ed. P. Scraton (1997) 20.
9 James, Jenks, and Prout, op. cit., n. 2.
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commitment to understanding the social and structural contexts within which
children act and respond. They are concerned with children’s experiences
and meanings yet they recognize the imposition of institutional constraints
and determining contexts.
10
This is the classic relationship and tension
described by Giddens as ‘agency’ and ‘structure’.
11
While ‘recogni[sing] the
obvious that children are a feature of all social worlds’,
12
critical social
theories guard against false universalism.
Cunningham concludes that ‘discourses about childhood’, and the
ideologies they reflect and reinforce, are socially, culturally, and politically
specific; they ‘embody . . . power relationships’ which prevail in time and
place.
13
This is assured through the hegemony of social and political
reproduction. Thus socialization is central to societal stability and continuity,
invariably containing conflict and controlling change. While children are not
without ‘minds of their own’, there is a powerful and imposed expectation on
them to follow adult-prescribed roles during their socially constructed
‘preparation’ for adulthood. This is the process in which children are ‘human
becomings’ as opposed to ‘human beings’;
14
excluded and marginalized
from the decisions through which, and the arenas in which, the quality of
their life is determined.
Central to ‘becoming’ is the imposition and formalization of regulations
specific to children. Often initiated and administered under the remit of
‘protection’, these represent a ‘world of confinement and limitation’.
15
Two
distinct but related dynamics inform the discourses and interventions which
contextualize the surveillance, regulation, and control of children within
contemporary British society. One is the representation of childhood as a
‘fact of human life with biology determining children’s dependency on
adults to provide care’ in the private or public spheres; the other is
manifested in the ‘social, political and economic dimensions of the adult-
child relation’.
16
Inevitably, ‘child safety’, ‘child protection’ and the child’s
‘best interests’ are manifestations of care and control, liberation and
confinement, freedom and discipline. Popular, academic, and professional
discourses subscribe to and reproduce an image of childhood which is
‘incorrupt but corruptible, requiring family and educational institutions to
418
10 P. Scraton and K. Chadwick, ‘The Theoretical and Political Priorities of Critical
Criminology’ in The Politics of Crime Control, eds. K. Stenson and D. Cowell
(1991).
11 See A. Giddens, Central Problems in Social Theory (1979); The Constitution of
Society: Outline of a Theory of Structuration (1984).
12 James, Jenks, and Prout, op. cit., n. 2, p. 32.
13 H. Cunningham, The Children of the Poor: Representations of Childhood Since the
Seventeenth Century (1991) 6.
14 J. Qvortrup, ‘Childhood Matters: An Introduction’ in Childhood Matters: Social
Theory, Practice and Politics, eds. J. Qvortrup et al. (1994) 4.
15 Goldson, op. cit., n. 8, p. 2.
16 id.
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