Up are at the heart of a dialectic
Up until the 19th century, parents had all the rights on their children. Theoritically, a child didn’t even exist in the law. At least, not until the Convention of November 20, 1989. So what is a child ? According to the first article of the UN Convention on the Rights of the Child, a child is anyone under 18 years old, «unless under the law applicable to the child, majority is attained earlier» (Art.1, United Nations, 1989).
Children are at the heart of a dialectic tension because a child is both the same and different form an adult (Moreau, 2016). He is the same in the sense that he is a human being who is given fundamental rights. But he is also different because he doesn’t know and understand the law the way an adult does, he as a different relation to reality, he is still looking for role models to build himself and he doesn’t have the same means as adults do. All of this puts the child in a position of weakness and inexperience in front of adults. Because children are different, we need to think in reverse. Basic rights, such as the right to live or the right to a private life, don’t manifest themselves in the same manner in the lives of children than of adults. There are rights specific to the child (e.g. the right to play) and rights that both children and adults share but are outlined differently. That is why children need a specific protection, mainly through a justice system specifically designed for them that differs from the one adults interact with/face when committing an offence. As such, the criminal responsibility of a minor who has committed an offence is not understood and represented in the same way than the criminal responsibility of someone over eighteen years old in a similar situation (DEI-Belgique, 2010).
But what does the term ‘criminal responsibility’ exactly mean ? Everyone has a general sense of what responsibility is but when it comes to defining it precisely (especially with regards to the law), it becomes more of a challenge. And not without reason. Responsibility takes different meanings depending on which area it falls into: judicial, psychological, philosophical, social, etc. Yet, this phenomenon is not specific to one country and the answers given are as diverse and quantifiable as there are judicial systems. But it seems that, in Europe, two tendencies are being shaped : the first one concerns a more protective judicial system where the interest of the child is put at the forefront with an emphasis on education ; and the second concerns a more repressive and punitive judicial system where the society’s interest prevails over the interest of the child (Delseaux, 2016).
Then, how do we know which system works best ? Should children even be incarcerated ? Should we, indeed, set a minimum age for criminal responsibility ? And if so, what should this age be ? Are children treated differently because of it ? These are a few of the questions that will be approached in this essay under the shape of a comparitive study of the laws regarding minors in France, Belgium and the United Kingdom. Firstly, we will review the age of criminal responsibility and the judicial system for minors in those three countries. Then, we will observe the reality behind those laws, which will be followed by a critical commentary on the treatment of children and teenagers who face the judicial system based on the works of renowned psychologists and commentaries from the European Court of Human Rights. And finally, this essay will be concluded by a personal commentary regarding the issue.