In 1992, V and T, two 10 year-old kids, took a 2 year-old child and attached him to the railroads of a train station after seing on television that trains usually stop when someone is on the train tracks. The child, unfortunately did not make it and died. V and T were judged as adults because they were 10 years old at the time of the events and, as such, were automatically attributed ?? criminal responsibility. They were sentenced to prison for an indefinite time, ‘during Her Majesty’s pleasure’ (BBC News, 1999) and remained in prison until their majority.
Is it fair to hold an adult trial for children aged 10 ? The ECHR did not think so. Firstly, the children were lucky to have a laywer ; in Common Law, defendants have the right to be represented by a laywer, meaning that they also have the right not to, whereas the presence of a laywer is supposed to be mandatory when children are being prosecuted. Furthermore, the trial wasn’t held behind closed doors, it was open to the public which is very intimidating for young children. It might be possible that the kids did not say everything they wanted to say for their defense because of it. When reviewing this case, the ECHR clearly stated that trials implicating minors should be held behind closed doors. The Court also stated that the children didn’t have the opportunity to fully participate in their own trial because the proceedings were not adapted to their level of maturity. (ECHR, 1999)
In her Master’s thesis La responsabilité pénale des mineurs en droit belge, français, et anglais, Laura Delsaux presented the points of view of two eminent psychologists who published their work on the development of the conception of justice in the minds of children and adults. This is an especially accurate point to analyse when we know that the judicial systems for minors mentioned in this essay are all based on moral grounds such as the notion of judgement/discernment in Belgium and France and the notion of discretion in the UK, yet none of them use psychological evaluations to establish criminal responsibility. It is solely decided by the judge.
But can a judge better evaluate a child’s state of mind than a psychologist ? Psychology provides invaluable input. It helps establishing when a child develops abilities to understand a certain behaviour and its consequences. It also helps determining when a child develops the capacity to form intent and when they are capable of adjusting their behaviour based on the consequences it may have. «Truth is, if you ask very young children if they know right and wrong, most of them would say yes» psychologist Dr Liane Pena Alampay says. But situations are often more complicated than just right versus wrong: «its not just knowing, but having the capacity to act on that knowledge» she adds (Geronimo, 2017).
The most eminent and influential psychologists who have worked and written on the development of moral reasoning in the child are Piaget and Kohlberg. Piaget studied the progressive capacity of children to go from objective responsibility to subjective responsibility (Kugelmass & Breznitz, 1967). He observed that before the ages of 10 and 11, children understand responsibility in terms of fear of the sanction. It is only between 11 and 14 years old that a young person starts understanding the idea of cause-effect and young people can develop this concept until the age of 17. Additional studies support this theory and even add that during that period, the child is not completely morally independent and capable of resisting provocations and temptations from adults and other peers (Delsaux, 2016).
Kohlberg extended Piaget’s theory. He outlined three stages: the first one is called ‘pre-conventional level’ which concerns children until 9 years old and is based on the understanding and respect of rules in order to avoid punishment. The second stage is called the ‘conventional level’, it affects individuals between 10 and 20 years old and refers to the law as the main value to conform to. The last stage is called ‘post-conventional’. It concerns young adults from 20 to 25 years old and refers to the internal ethical principles of an individual who will start acting according to them. He adds that the third stage is rarely attained by adults. We usually stop our moral development at stage two (Pryde ; Delsaux, 2016).
As such, applying the same standards to an 11-year-old child and to an adult amounts to ignoring the differences in the psychological development of the two individuals. What is odd is that in most countries, a child is deemed responsible enough to learn to drive a car at 17, for instance, but is considered capable of committing a crime at as early as 10 ? In Belgium, the concept of divestiture sends the message that a 16-year-old teenager is exempted of having discernment when committing a simple theft but could, all of a sudden, have complete discernment when committing a theft with violence ? Those irregularities highlight the contradiction of expecting children to behave a certain way in a society that is not always adapted to their needs.