Third and Fourth Periodic Report on CRC - Unicef

Convention on the Rights of the Child
though no property rights was in issue, when Lord Eldon, L.C. propounded the broad proposition that the crown is the
ultimate parent of the child, the king, as parens patriae, through the chancellor, will step in <strong>and</strong> protect the child by removing
it from the environment that must make for its undoing. [See Wellesley vs. Wellesley, 2 Russ., 1; 2 Bligh N.S., 124] Thus
developed the protection of the right of the child’s property <strong>and</strong> concern for his wellbeing.
Special courts h<strong>and</strong>ling problems of delinquent, neglected, or abused children were set up subsequently, viz. Juvenile
Courts. These courts processed both civil matters, often concerning care of an ab<strong>and</strong>oned or impoverished child, <strong>and</strong>
criminal matters, arising from antisocial behaviour by the child. Most statutes provide that all persons under a given age
(often 18 years) must first be processed by the juvenile court, which can then, at its discretion, assign the case to an ordinary
court.
Before the creation of the first juvenile court, in Chicago in 1899, <strong>and</strong> the subsequent creation of other such courts in the
United States <strong>and</strong> other countries (e.g., Canada in 1908; Engl<strong>and</strong> in 1908; France in 1912; Russia in 1918; Pol<strong>and</strong> in 1919;
Japan in 1922; <strong>and</strong> Germany in 1923), juveniles were tried in the same courts as adults.
REASONS FOR SEPARATE HANDLING OF CHILDREN:
Bernard Flexner writing almost a century ago on the Legal Aspects of the Juvenile Court [Annals of the American Academy
of Political <strong>and</strong> Social Science, Vol.36, No.1, Administration of Justice in the United States. (Jul., 1910), pp. 49-56] poses
a question, as would a lawyer, as to why the child who is accused of a crime should be treated differently from an adult,
since both have violated the law, <strong>and</strong> they must be punished. On the other h<strong>and</strong>, he points out, a distinction already existed
at common law as a child below the age of seven did not reach the age of criminal responsibility <strong>and</strong> would not be liable for
his criminal acts. Of course, since then the common law has developed considerably. Cross <strong>and</strong> Jones in ‘An Introduction
to Criminal Law’ state: "It is conclusively presumed that no child under the age of ten can be guilty of an offence; a child of
ten years or over, but under the age of fourteen, is presumed to be incapable of committing a crime, but this presumption
may be rebutted by evidence of ‘mischievous discretion’ i.e. knowledge that what was done was morally wrong". R. v. Owen,
(1830) 4 C & P 236. [This presumption was, however, abolished by section 34 of the Crime <strong>and</strong> Disorder Act 1998.]
Then referring to the Illinois legislation of 1898 <strong>and</strong> 1899, which led to the establishment of the Juvenile Court in Chicago,
the first in the United States, Flexner stated that it raised the age limit <strong>and</strong> said that a child of 16 or 17, or under for violations
of law, shall not be deemed a criminal. However the court would apply the same procedure to a delinquent as it would to
the neglected child.
The dominant feature of the legislation regarding proceeding against the delinquent child is that it is meant for the protection
of the child. The State or the Crown, as the case may be, st<strong>and</strong>s in loco parentis <strong>and</strong> through the ‘court’ ensures that the
unlawful activity of the child does not go unpunished <strong>and</strong> at the same time that the child is not exposed to the rigours of the
criminal justice system with all its awe-inspiring paraphernalia <strong>and</strong> the stigma of criminality at the conclusion of the
proceedings leading to a finding of guilt. Many have advocated that upon reaching the conclusion that the child has violated
the law, he is not to be br<strong>and</strong>ed a "delinquent child" or a "wayward child" or a "juvenile delinquent", but it should be merely
adjudged that the child is in need of care <strong>and</strong> protection of the State.
MODERN WAYS OF DEALING WITH THE MATTERS CONCERNING CHILDREN:
A more pragmatic <strong>and</strong> equally important reason for separate h<strong>and</strong>ling of child delinquents is the need for their physical
seclusion from adult offenders. It is an undeniable fact that the mind of the child is immature, impressionable <strong>and</strong> malleable.
If kept in association with bad company, it is likely to learn the wrong things; in association with criminals, it is likely to pick
up the trade of the criminals <strong>and</strong> improve upon the methodology with his young <strong>and</strong> fertile mind. Hence the modern way of
thinking <strong>and</strong> emphasis is on ensuring that young offenders are at all times kept separate from the adult offenders from the
time of their apprehension, during the trial <strong>and</strong> during confinement. This can be gleaned from the commentary to Rule 13.5
of the Beijing Rules (discussed later) which points out that ‘the danger to juveniles of "criminalcontamination" while in
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