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Kathryn Hollingsworth, Queen's College, University of Cambridge. What is the correct approach to the treatment of children in the youth justice system? The family courts presume that the child is incompetent and adopt a welfare-based approach. In the criminal courts, a child over 10 is presumed competent and as such the approach tends to be more rights-based, but there is a lack of consistency in the decision making. Should children be entitled to rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the Convention) in the same way as adults? Or should some account be taken of their more limited competence and an approach found to reconcile the child's status as rights holder with an acknowledgement of his (probable) lower levels of capacity (compared to most adults)? Is the concept of welfare too often narrowly conceived as equating to the prevention of future offending by the child? Can the concept of welfare be incorporated into a rights-based approach?
This article considers these and other key questions against the backdrop of a series of cases where these issues were relevant in terms of the outcome for the individual child and the treatment of children in the youth justice system as a whole. Some courts have embarked on a more considered balancing exercise, identifying all the relevant Convention rights and balancing them against competing rights and legitimate interests. It is proposed here that there are important reasons why this approach is to be preferred. For the full article see Child and Family Law Quarterly, Vol 19, No 1, 2007.
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