Youth Justice Reform: Redressing Age Discrimination against Children?
| DOI | 10.1177/1473225411435615 |
| Author | Simon Flacks |
| Published date | 01 April 2012 |
| Date | 01 April 2012 |
Youth Justice
12(1) 19 –35
© The Author(s) 2012
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DOI: 10.1177/1473225411435615
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Youth Justice Reform: Redressing
Age Discrimination against Children?
Simon Flacks
Abstract
This article considers whether the system of reprimands and final warnings in the youth justice system in
England and Wales constitutes age discrimination for the purposes of human rights law. Whilst much youth
justice discourse has addressed the use of diversionary measures that steer children away from formal
justice processes, little attention has been paid to measures which negatively discriminate against children,
in comparison to adults, without reasonable justification. The discussion contextualizes the issue within
discourses on the sociology of childhood and youth justice, and considers why there is a general reluctance
to recognize children as ‘victims’ of age discrimination.
Keywords
discrimination, diversion, human rights
Introduction
After gaining power in the May 2010 parliamentary elections, the new British govern-
ment, like many before it, wasted little time in signalling its commitment to reviewing
sentencing and rehabilitation policy in the criminal justice system and, in December 2010,
published the Green Paper Breaking the Cycle: Effective punishment, Rehabilitation and
Sentencing of Offenders (Ministry of Justice, 2010). The government’s response to the
ensuing consultation outlined plans to ‘replace the current youth out-of-court disposals
with a system of youth cautions, and youth conditional cautions, repeal youth penalty
notices for disorder and promote informal restorative disposals’ (Ministry of Justice,
2011: 9).
This article considers whether current out-of-court disposals, in particular reprimands
and final warnings, discriminate against children. Age discrimination in respect of young
people is an issue almost entirely neglected in both youth justice and child rights discourse.1
Although diversionary measures that treat children more leniently than adults – measures
Corresponding author:
Simon Flacks, University of Vienna, Doctoral College, Empowerment through Human Rights, Hörlgasse 6/8, 1090 Vienna,
Austria.
Email: simon.flacks@univie.ac.at
435615YJJ12110.1177/1473225411435615Simon FlacksYouth Justice
Article
20 Youth Justice 12(1)
which one might describe as positive discrimination – are now enshrined in international
soft law, and have formed the basis of a number of critical commentaries on the juvenile
justice system in England and Wales and elsewhere (see, for example, Goldson and
Muncie, 2009; Hammarberg, 2009; Kilkelly, 2008) there has been very little scrutiny of
laws which may constitute negative discrimination on the basis of age. Where discussion
has focused on the issue of discrimination specifically, it has mostly addressed unequal
treatment among children and young people within the criminal justice system, in particu-
lar on the basis of gender and ‘race’ (Youth Justice Board, 2004), but not children and
young people per se.2
The right to non-discrimination is a well-established, if sometimes ill-defined, prin-
ciple of human rights law. The relevant provisions, and their application, are discussed
in more detail later in the article, but they include Article 14 of the European Court of
Human Rights, and Article 2 of the Convention on the Rights of the Child. Various legal
authorities, including UK courts, have held that age falls within the purview of such
human rights provisions.3 The discussion that follows is particularly pertinent because
there have been increasing moves towards recognizing age discrimination in legal provi-
sions across Europe, for example in the Directive establishing a General Framework for
Equal Treatment in Employment and Occupation ((2000) OJ L 303/16). However, the
discourse has been dominated by discrimination as experienced by older people, particu-
larly in respect of employment, and not by children and young people.4 Indeed, as
explained later, children have been expressly excluded from civil age discrimination
legislation in the UK.
This article begins by arguing that the use of reprimands and final warnings constitutes
age discrimination, and considers the feasibility of bringing a case under European and
domestic human rights law. It then discusses the importance of socio-legal understandings
of childhood, discrimination and youth justice in arguing for greater recognition of the
propensity towards age discrimination in the criminal justice system in general, notwith-
standing the challenges such an approach holds. Although not blind to the limits of non-
discrimination law in addressing social inequality, it concludes by arguing that scrutinizing
criminal justice policies with age discrimination in mind could constitute a useful means
for challenging overly punitive youth justice measures, and that viewing childhood as a
site of potential discrimination on the basis of age could prove helpful in addressing young
people’s marginalization.
Reprimands and Final Warnings: Examples of Age
Discrimination?
Section 65 of the Crime and Disorder Act 1998 (CDA) introduced reprimands and final
warnings into the youth justice system, and these are among the provisions that the gov-
ernment has recently indicated it plans to replace. These measures were introduced
because of perceptions that the previous ‘caution’ system was too soft on juvenile offend-
ers, and that it allowed too much scope for the repetition of offending behaviour without
the juvenile being suitably sanctioned (Bateman, 2002). Following a reprimand, any further
offence leads to a final warning or charge. Final warnings are issued when an offender has
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