ary consideration (article 3(1)); that their survival and development is ensured “to the maximum extent possible” (article 6); that they are not separated from their parents unless competent authorities decide “that such separation is necessary for the best interests of the child” (article 9).
And as they are children “alleged as, accused of, or recognised as having infringed the penal law”, States must not only recognise their equal rights to due process, but also “to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society” (article 40).
There must be investigation and a hearing to determine what happened and who was immediately responsible for the crime. The victim’s family has a right to know what happened. The State has an active duty to protect everyone’s right to life and to respect for their physical integrity and human dignity, to protect all members of society from such crimes. This means understanding as far as possible why the crime happened – contributory factors, both direct and indirect – including in the previous lives of the two killers, and how it could have been prevented. Any broader lessons that can be learned about preventing such crimes must inform future policy.
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"... it should be considered that, in accordance with the current prevailing contemporary notion of juvenile justice, the aim of the processing of young offenders should not be penal or reformative but it should be oriented towards individual development, growth and social integration..."
Comment by the Social Development Divisions, Centre for Development and Humanitarian Affairs, during Technical Review of Draft Convention on the Rights of the Child, 1988
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Here for discussion is a rough outline of the possible proceedings in this case, in a future state which has decided not to criminalise children:
1 A hearing to determine – beyond reasonable doubt - whether the two 10 year-olds were responsible – whether they did or did not kill the two year-old. Whether, and in what way, the 10 year olds should be involved in this investigative hearing would need careful assessment to determine a procedure appropriate to their capacity.
2 If the two boys are found responsible, then a multi-disciplinary investigation is required (extensive and detailed for such a serious crime, less so for less serious crimes - but repetition of less serious offending could signal the need for more investigation). The investigation must cover the circumstances of the crime, focusing on why the killing took place, including:
Environmental and circumstantial factors, not directly related to the killers – for example levels of supervision in public places for children, effective promotion of community responsibility to protect children, etc.
Other immediate factors that may explain why the killing happened;
Factors in the background – in the broadest sense - of the killers, which may help to understand their actions.
This judicial investigation should lead to a detailed report, attributing weight to different factors, but emphasising uncertainty, where it exists, as much as certainty.
The hearing and the ongoing investigation would need the power to require the attendance of relevant witnesses – parents, relations, friends, teachers etc. (with the usual rules to protect their rights). The children involved would have the right to be heard and to be represented – but here too the procedures should be appropriate to their capacity.
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"Sufficient attention shall be given to positive measures that involve the full mobilisation of all possible resources, including the family, volunteers and other community groups, as well as schools and other community institutions, for the purpose of promoting the well-being of the juvenile, with a view to reducing the need for intervention under the law, and of effectively, fairly and humanely dealing with the juvenile in conflict with the law.
"Juvenile justice shall be conceived as an integral part of the national development process of each country, within a comprehensive framework of social justice for all juveniles, thus, at the same time, contributing to the protection of the young and the maintenance of a peaceful order in society."
United Nations Standard Minimum Rules for the Administration of Juvenile Justice – The Beijing Rules, adopted by General Assembly resolution 40/33 of 29 November 1986, para. 13-14
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The Convention requires (Article 40(2)(7)) that there should be no public identification of children in juvenile justice systems. To ensure their privacy, the privacy of all involved should be protected. But the well-known dangers of entirely closed hearings suggest that factual reporting of such hearings and the publication of reports of investigations, without identifying the children involved directly or indirectly, is in the public interest.
3 Depending on the findings and on which factors have been found to have greatest weight, the investigation - perhaps with different or additional experts - would be reconvened for its second stage: to identify both how the killing could have been prevented and what forms of supervision, education, treatment and support are most likely to prevent these particular children committing further crimes, to most fully rehabilitate and re-integrate them, ensuring their maximum development. This stage of the investigation would be required to consider whether the children pose an ongoing serious risk to the public and what actions are proposed to reduce the risk to an acceptable level. The State’s responsibility requires it, in fulfilling its obligations to the two murderers, to ensure that public safety is not unreasonably put at risk.
Article 37 places very strict limits on any restriction of liberty of offending children: “No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”.
As noted above, in a system which rejects retribution, the only justification for locking up children is that they pose an assessed serious risk to others’ safety and other ways of minimising this risk are considered inadequate.
So in determining necessary action, the investigation will need to review any such risk and all possible measures for minimising it. Any decision to detain requires a judicial hearing to test it and needs ongoing frequent judicial review; and also as noted above, there has to be best interests consideration of which service should be responsible for such – very exceptional – detention.
The second stage investigation would lead to a second detailed report and plan, including proposals for necessary monitoring and frequent and regular review and evaluation. In line with States’ obligations, the plan should have statutory force, with a statutory duty to fulfil it.
And what happens when a child who is being reviewed under this distinct child justice system becomes 18? The response to their offending behaviour, including necessary supervision or in a very small number of cases some form of restriction of liberty to ensure public safety, may have to continue for a period, determined by successive reviews.
There are already limitations in some States on the keeping of records of offending by children and their use in subsequent investigations. The Beijing Rules are clear that: “Records of juvenile offenders shall not be used in adult proceedings in subsequent cases involving the same offender.” (Rule 21.2) So it seems that only the most serious considerations of public safety should allow records of responsibility for offences committed before 18 to be maintained and available to influence treatment of the person beyond 18.
Surely the children’s rights community now owes children strong and uncompromising advocacy to end their criminalisation? Of course this is not going to be achieved easily or quickly, but there is a need for a principled and fully rights-compliant target.
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