Theorising Children's Rights in Youth Justice: The Significance of Autonomy and Foundational Rights
| DOI | http://doi.org/10.1111/1468-2230.12047 |
| Published date | 01 November 2013 |
| Date | 01 November 2013 |
| Author | Kathryn Hollingsworth |
Theorising Children’s Rights in Youth Justice:
The Significance of Autonomy and Foundational Rights
Kathryn Hollingsworth*
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.
Over the course of the past decade children’s rights have become a principal tool
for analysing and critiquing the youth justice system in England and Wales. The
European Convention on Human Rights (ECHR) and the United Nations
for scholars,2non-governmental organisations,3and international rights bodies4to
*Newcastle Law School. My thanks to Thom Brooks, Richard Collier, Jillian Craigie, Andrew
Franklin-Hall and Aoife Nolan for reading and commenting on earlier versions of this paper, and to
Alan Norrie and Nicky Padfield for discussing with me the ideas within it. Thanks are also due to the
anonymous reviewers for very helpful comments. Parts of the paper were developed during a period
of research leave spent at the Universities of Melbourne, New South Wales, and Otago, and I am
grateful for the support of those institutions.
1 See especially UNCRC, Arts 37 and 40, and the general principles contained in Arts 3, 12, and
16; the United Nations Minimum Rules for the Administration of Juvenile Justice (The Beijing
Rules) 1985; the UN Guidelines for the Prevention of Juvenile Delinquency (The Riyadh
Guidelines) 1990; and UN Committee on the Rights of the Child, General Comment No 10:
Children’s Rights in Juvenile Justice (CRC/C/GC/10, 25 April 2007).
2 For example, J. Fortin, Children’s Rights and the Developing Law (Cambridge: CUP, 3rd ed, 2009)
ch 18; Youth Justice: An International Journal (2008) 8(3) (special issue); and J. Muncie, ‘Children’s
Rights and Youth Justice’ in B. Franklin (ed), The New Handbook on Children’s Rights: Comparative
Policy and Practice (Oxford: OUP, 2002).
3 Children’s Rights Alliance for England, Doing Right by Children: Making a Reality of Children’s
Rights in the Family and Juvenile Justice System (London, 2011).
4 United Nations Committee on the Rights of the Child, Concluding Observations on the United
Kingdom of Great Britain and Northern Ireland, CRC/C/GBR/CO/4, 3 October 2008, paras 35 and
77) and the Memorandum by Thomas Hammarberg, Commissioner for Human Rights of the
Council of Europe, Strasbourg, 17 October 2008 at https://wcd.coe.int/wcd/ViewDoc.jsp?id
=1356037&Site=CommDH&BackColorInternet=FEC65B&BackColorIntranet=FEC65B
&BackColorLogged=FFC679 (last visited 22 June 2013).
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© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited. (2013) 76(6) MLR1046–1069
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
assess whether a ‘proactive’ rights-based approach,5or a culture of children’s rights,
is evident in the treatment of adolescents who are in conflict with the law.6
International rights standards have also increasingly formed the basis of legal
challenges brought by children and their advocates.7Many of the successful
claims have invoked what Ferguson calls ‘rights for children’8: rights that extend
to children not because of their identity as child per se (which, in contrast, she
labels ‘children’s rights’), but because of their membership of another rights-
holding group. In the criminal justice context these include human rights9as well
as the rights that protect interests qua (suspected) offender, such as the right to a
fair hearing or the right not to self-incriminate.10 These rights become ‘rights
for children’ by their extension to juveniles11 and through adjustment of
their content to account for presumed and actual differences in capacity and
vulnerability.12
However, international (children’s) rights standards have been less successful
in addressing some serious and frequently identified shortcomings of the English
youth justice system, including the low age of criminal responsibility,13 the
(over)use of (adult-like) detention,14 and inadequate resettlement provision.15
5 S. Fredman, Human Rights Transformed: Positive Rights and Positive Duties (Oxford: OUP, 2008) 33.
6 On the use of the UNCRC as an audit tool see U. Kilkelly, ‘Using the Convention on the Rights
of the Child in Law and Policy’ in A. Invernizzi and J. Williams (eds), The Human Rights of
Children: From Visions to Implementation (Farnham: Ashgate, 2011).
8 L. Ferguson, ‘Not Merely Rights for Children but Children’s Rights: The Theory Gap and the
Assumption of the Importance of Children’s Rights’ (2013) International Journal of Children’s Rights
(forthcoming).
9 Because ‘children are human’ too. J. Herring, Family Law (Harlow: Longman, 5th ed, 2011) 434
quoted by Ferguson, ibid, 5. In the criminal justice context, examples of children’s human rights
QB 657 and R (on the application of BP) vSecretary of State for the Home Department [2003] EWHC
1963 (Admin) at [27] (although the applicant was unsuccessful on the particular facts of the case).
10 For example, VvUnited Kingdom (1999) 30 EHRR 121; SC vUnited Kingdom (2004) 40 EHRR
R (on the application of C) vSevenoaks Youth Court [2010] 1 All ER 735; and R (on the application
of HC) (a child, by his litigation friend CC) vThe Secretary of State for the Home Department; The
Commissioner of Police of the Metropolis [2013] EWHC 982 (Admin).
11 For example, see the extension of due process (‘Miranda’) rights to juveniles by the US Supreme
Court in In re Gault 387 US 1 (1966).
12 See n 11 and 12 above.
13 The age of criminal responsibility remains at 10 (Children and Young Persons Act 1933, s 50). See
VvUnited Kingdom n 10 above, and the discussion in the section headed ‘A Children’s
Rights-Based Youth Justice System?’ below.
14 Custodial rates for juveniles have dropped significantly in the last four years but this appears to be
due to political and economic factors, not rights-based reasoning (see T. Bateman, ‘Who Pulled
the Plug? Towards an Explanation of the Fall in Child Imprisonment in England and Wales’
(2012) 12 Youth Justice: An International Journal 36). On the limits of rights vis-à-vis the type and
availability of custodial accommodation, see the unsuccessful challenge to the Youth Justice Board
(YJB)’s decision to reduce the number of beds it commissions in secure children’s homes: R (on
the application of Secure Services Ltd and others) vYouth Justice Board [2009] EWHC 2347 (Admin).
15 For example, a child leaving custody must cross the high threshold of ECHR, Art 3 or rely on
rights attaching to another legal status such as care-leaver, in order to have a right to resettlement.
See K. Hollingsworth, ‘Securing Responsibility, Achieving Parity? The Legal Support for
Children Leaving Custody’ (2013) 33 LS 22.
Kathryn Hollingsworth
© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited. 1047
(2013) 76(6) MLR 1046–1069
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