The Children Act, 1974 and why the children involved in crime and its solution.
Legal Analysis
Chapter – 1
1.1 Definitions:
According to THE CHILDREN ACT, 1974 & Children Rules, 1976 – “Child” means a person under the age of sixteen years, and when used with reference to a child sent to a certified institute or approved home or committed by a Court to the custody of a relative or other fit person means that child during the whole period of his detention notwithstanding that he may have attained the age of sixteen years during that period;
According to The Nari & Shishu Nirjatan Daman Ain, 2000
(Amended – 2003) “Child” means a person who is not over sixteen years old;
1.2 Background
Challenges to the health of our children have been changing in recent decades as we are able to tackle much disease through immunization and child health programmed. However, new challenges are being uncovered child involvement in crime is one of them.
The children involved in crime for physical, psychological, emotional, and social sufferings and when parents are unhappy in their role or when a factional relationship exits between them, some babies become neglected and involved in crime. Children abusing is the most important factor for involvement in crime and child abuse also called cruelty to children. The term can denote the use of inordinate physical abuse, unjustifiable verbal abuse, the failure to furnish proper shelter, medical treatment, or emotional support and other cases of sexual molestation or rape and the making child pornography. Recent psychiatric and pediatric research has found that a high proportion of parents guilty of abusive and inhuman treatment of their children were physically and mentally maltreated themselves as children.
Legal remedies for children involvement in crime range from incarceration of the offender to the removal of the child from the custody of parents or others guilty of committing the crime.
This dissertation is intended to identify the knowledge and perception of children involvement in crime in order to strengthen the capacity of public in understanding the challenges and barriers, identifying child crime and prevent the children crime in future, and managing physical, sexual, psychological and social consequences of this involvement.
Chapter – 2
2.1 The concept of crime:
Historically, the concept of crime seems to have always been changing with the variations in social conditions during the evolutionary stages of human society. This can be illustrated by the fact that early English society during 12th and 13th centuries included only those acts as crime which was committed against the State and the religion.
As stated earlier, crime has been defined as an anti-social, immoral or sinful behavior which is contrary to the cherished norms, beliefs, customs and traditions of a given society. According to another school of thought, crime is an act which a particular social group regards as sufficiently menacing to its fundamental interests to justify formal reaction to restrain the violation. Stephen has defined ‘crime’ as an act which is both prohibited by law and revolting to the moral sentiments of the society.
According to the legal definition, crime is any form of conduct which is declared to be socially harmful to a state and as such forbidden by law under pain of some punishment.
Paul W Tappan has defined crime as an intentional act or omission in violation of criminal law, committed without defense or justification and sanctioned by law as felony or misdemeanor.
As the function of criminal law is to reprimand the offender and prevent the incidence of crime, it becomes necessary to investigate into the nature of crime. Every criminal behavior must respond the following elements for crime:
There are should be an external act,
· It should be done with some criminal intention,
· It should be a prohibited conduct under the existing law &
· It should be carry with some kind of punishment.
The Penal code section 82 affords complete immunity to a child under seven against criminal liability. Under the age of seven years no infant can be guilty of a crime. And section 83 – this section is concerned with maturity of understanding in relation to the commission of an offence by a child aged seven to twelve, and protects one who has not attained sufficient maturity to judge the nature and consequences of his conduct.
An act of children of over nine years old and under 12 years should not be taken as an offence unless it is proved that he had grown sufficient maturity of understanding and the consequence of the conduct( 31 DLR 101).
2.2 Social risk factors for involvement of crime
This brief provides on introductory discussion of five areas of social risk factors for involvement in crime: family, education, economic, community and peers and alcohol and other drugs –
Family
Parental behavior plays a strong role in shaping a child’s risk of later involvement of
Criminality.
Parental criminality appears to be strongly correlated with an increased risk of a child of developing conduct problems and later criminal involvement. The influence of parental criminality is complex because of the multiple mechanisms (shared environmental factor, genetic and other biological risk factors, negative modeling by parents) involved that potentially pass a parent’s risk of criminal involvement to their child.
Poor parenting practices, such as poor parental supervision and parents rejection of a child are modest predictors of subsequent delinquency by the child. Children who experience severe or harsh parental practices have increased rates of conduct problems, substance abuse, depression and anxiety and violent crime in early adulthood, compared to those whose parents did not use physical punishment.
Family violence and maltreatment of children have significant inter-generational effects on an individual likelihood of becoming involvement in crime. Some research suggests that maltreatment during childhood doubles an individuals probability of engaging in many types of crime the effects of family appears to be greatest during the early years of Childs life and reduces as they get older, although poor parental supervision and law levels of warmth between parents and their teenage children have also been identified as a contributing risk factors for future offending.
Education
Education has an important role in influencing an individual’s opportunity for success in society. Non-participation in school level education is a risk factor for later delinquency and criminal activity. Education changes the relative opportunities afforded by crime, and in particular property crime, compared to legitimate employment. Greater levels of education ensure greater returns from employment, making it more attractive then crime.
Low levels of parental education (neither parent having a school qualification) have also been identified as a risk factor for future offending for children aged less than 13 years.
Economic
Economic factors that influence criminal behavior include relative wealth (disparity) poverty (deprivation) and unemployment. The balance of evidence suggests a link between disparity and violent crime. The strength of this relationship is debated but international analysis suggests that a relationship exists after controlling for other factors. Evidence suggests that deprivation is associated with criminal offending across. The spectrum analysis from the Christchurch health and development study argues that socio-economic deprivation is associated with self reported crime and officially recorded convictions even after controlling of parental, individual, school and peer factors.
Unemployment is a predictor of involvement related to crime, but in particular property crime and not violent crime, the strength of the relationship between unemployment and crime is contested. It is unclear how significant this relationship is compared to other social and economic factors.
Community and peers
Community and neighborhood effects in criminality are hard to measure but they do appear to exert an influence on anti-social behavior and crime. Neighborhood effects become more important as a child gets older.
Many studies have shown that anti-social peer groups ply an important part in the development of deviancy and violence.
Alcohol and other drugs
The exact nature of the relationship between alcohol and other drugs (AoD) and crime is complex. Not all consumption of AoD directly leads to criminal offending but sustained abuse of either drugs or alcohol does appear to increase an individual’s chance of becoming involved in crime. Offending committed by individuals under the influence of AoD is often affected by other factors, such a mental health, temperament, geographic location and peer influences.
Chapter – 3
3.1 Classification of crime
There are a variety of crime such a violent personal crimes, occasional property crimes, occupational crimes, political crime, public order crimes, conventional crimes, professional crimes, white collar crimes, sexual crimes, crimes against property, person, decency, public order etc. Broadly speaking these may be categorized into three main heads namely- 1) Offences falling under code of criminal procedure; 2) offences under Bangladesh penal code;3) offences under local or special laws or enactments.
Some writers have preferred to classify crimes into legal, political, economic, social and miscellaneous crimes.
Legal crimes can be termed as traditional crimes such as theft, robbery, dacoity, rape, hurt and rioting etc.
Political offences are those which are motivated politically or committed in violation of the election laws or norms set for the politicians in course of their political activities.
Economic crimes include white collar offences such as tax evasion, smuggling, prostitution, gambling, foreign exchange violations, offences under the MRTP (Amendment) Act, 1978, etc.
Social crimes are those which are committed under social legislation such as the Child Marriage Restraint Act 1978; Protection of Civil Rights Act 1955; Immoral traffic (prevention) Act 1956; Indecent Representation of Woman (Prohibition) Act 1986; Commission of Sati (prevention) Act 1987; The Dowry Prohibition Act 1961; as amended in 1983 and 1986; Juvenile Justice (Care and protection of Children) Act 2000; Scheduled Castes and Scheduled Tribes (prevention of Atrocities) Act 1989 etc.
All other remaining crimes which are committed under local or special Acts are termed as miscellaneous crimes, for example offences under the prevention of Food Adulteration Act 1954; Drugs Act 1940; The Narcotics Control Act 1990; Consumer’s Protection Act 1986; etc.
More recently a new specie of crime known as cyber crime has emerged as a result of development of computer science and information technology during last quarter of the 20th century.
Classification of offences under existing law:
1. Offences against person
2. Offences against property
3. Offences relating to documents
4. Offences affecting mental order
5. Offences against public tranquility
6. Offences against State
Offences relating to public servant.
This classification seems to be more rational and elaborate from the point of view of administration of criminal and penal law.
3.2 Characteristics of crime
There are certain characteristics of a crime which make an unlawful act or omission punishable under the law of the land. The main characteristics of a crime are as follows:-
External consequences – Crimes always have a harmful impact on society may it be social, personal, emotional or mental.
Act (Actus Reus) – There should be an act or omission to constitute a crime. Intention or mens-rea alone shall not constitute a crime unless it is followed by some external or over act. Generally omitting to do something will not amount to actus teus of an offence. The criminal law usually punishes individuals for positive conduct and not for inaction. There are, however, some notable exceptions. For example a police officer may have a duty to act to prevent an assault and if he does not, he will be liable to be punished under the law.
Mens-rea or guilty mind – Mens-rea is one of the essential ingredients of a crime. It may, however, be direct or implied. The implied mens-rea is otherwise termed as constructive mens-rea.
Mens-rea implies that there must be a state of mind with respect to an actus reus, that is, an intention to act in the proscribed fashion. It is, however, important to distinguish mens rea from motive. Thus if a person steals away a few loaves of bread from someone’s kitchen to feed a child who is dying of hunger, the motive here may be honorable and understandable, nevertheless the mens rea being to commit the theft, the person would be convicted for theft. His motive may, however, be taken into account in sentencing and he may be less severely punished because of his good motive. In short, motive should be taken into consideration at the sentencing stage and not at the time of deciding the question of mens rea.
Prohibited act – The act should be prohibited under the existing penal law. An act, howsoever immoral, shall not be an offence unless it is prohibited by law of the land.
Punishment – The act in order to constitute a crime should not only be prohibited by the law but should also be punishable by the State. The punishment is usually set out in terms of a maximum and the actual punishment in any particular case is left to the discretion of the judge. Both the defense and the prosecution have a right to appeal against the quantum of sentence.
3.3 Jurisdiction of court regarding crime of children:
When a Juvenile Court has been established for any local area, such Court shall try all cases in which a child is charged with the commission of an offence and shall deal with and dispose of all other proceedings under The Children Act, 1974.
Notwithstanding anything contained in any law for the time being in force, no child shall be charged with or tried for any offence together with an adult.
If a child is accused of an offence for which under any other law for the time being in force such child but for the provisions of The Children Act, 1974 could have been tried together with an adult, the Court taking cognizance of the offence shall direct separate trials of the child and the adult and the case is a fit one for committal to the Court of Session, such Court shall, after separating the case in respect of the child from that respect of the adult, direct that the adult alone be committed to the Court of Session for trial.
No person shall be present at any sitting of a Juvenile Court except –
· The members and officers of the Court;
· The parties to the case or proceeding before the Court and other persons directly concerned in the case or proceeding including the police officers;
· Parents or guardians of the child; and
· Such other person as the Court specially authorizes to be present.
· But if at any stage during the hearing of a case or proceeding, the Court considers it expedient in the interest of the child to direct any person, including the parent, guardian or the spouse of the child or the child himself to withdraw, the Court may give such direction and thereupon such person shall withdraw.
· If at any stage during the hearing of a case or proceeding in relation to an offence against or any conduct contrary to decency or morality, a child is summoned as a witness, the Court hearing the case or proceeding may direct such persons as it thinks fit, not being parties to the case or proceeding, their legal advisers and the officers concerned with the case or proceeding, to withdraw and thereupon such persons shall withdraw.
· Finally for the purpose of any order which a Court has to pass under The Children Act, 1974, the Court shall have regard to the following factors: –
· the character and age of the child;
· the circumstances in which the child is living;
· the reports made by the Probation Officer; and
· such other matters as may, in the opinion of the Court, require to be taken into consideration in the interest of the child:
· Provided that where a child is found to have committed an offence, the above factors shall be taken into consideration after the Court has recorded a finding against him to that effect. And no report in any newspaper, magazine or news sheet shall disclose any particular of any case or proceeding in Court which a child is involved and which leads directly or indirectly to the identification of neither such child, nor any picture be published:
Chapter 4
4.1Crimes, anti-social behavior and children in England
The focus of this review is on services for the prevention of crime and anti-social Behavior among five to thirteen year old (the age group relevant to Children’s Fund Activities). In this introduction we aim to clarify each of the key terms in this Statement and, in so doing, to establish the organizing framework for the paper. To begin, we will examine the meanings of the terms ‘crime’ and ‘anti-social behavior’s they are applied to children aged between five and thirteen.
Crime, anti-social behavior and children
The obvious starting-point is with the legal age of criminal responsibility, which in England and Wales is ten years. This means, by definition, that no child under the Age of ten can commit a crime (Pad field 2002). If a child who is under ten years old Behaves in a way which in anyone over ten years would be regarded as a crime, for example, physically assaulting another person or stealing another person’s property, that child cannot be charged with a criminal offence; indeed, children under ten are regarded by the law as incapable of crime. To describe such acts as ‘crimes’ or such behaviors as ‘criminal’ thus has no legal validity: within the criminal justice system of England and Wales, ‘crime’ has no meaning in relation to children below the age of ten.
By contrast, the criminal law regards children aged ten years and over as fully responsible for their actions. They are in principle held to be capable of and accountable for the same range of criminal offences as adults. Whilst the legal procedures and the range of sanctions applicable to children aged ten and over who are guilty of a crime may be different from those applicable to adults, assumptions about their culpability are not. ‘Crime’, therefore, has the same meaning in relation to ten to thirteen year old children as it does for adolescents and adults.
This has been the case since 1963 (Children & Young Person’s Act). Before then it was 8 years, as it still is in Scotland. Most western European countries have higher, though varying, ages of criminal responsibility, e.g. 14 in Germany, 16 in Spain, 18 in Belgium. (Bandalli 2000).
The distinctive set of procedures and sanctions applied to young people aged 10-18 forms the basis for what has come to be known as the ‘Youth Justice System’ – a subset of the Criminal Justice System At this point, it is worth noting, in brief, a recent change in the law that has had the effect of hardening the impact of the age of criminal responsibility. Until 1998, children aged ten to fourteen who were charged with a criminal offence were presumed, in any court hearing, to be doli incapax (‘incapable of evil’); that is, they were presumed not to be capable of knowing that a particular behavior was ‘seriously wrong’ as opposed to being merely ‘naughty’. It was the responsibility of the prosecution to demonstrate, beyond reasonable doubt, that the child in question was capable of recognizing behavior that was seriously wrong. Children aged between ten and fourteen were thus afforded some procedural protection from the full weight of the criminal law (Bandalli 2000; Newburn 2002). The presumption of doli incapax was abolished by the Crime and Disorder Act 1998, resulting, in the words of one commentator, ‘in an untrammeled age of criminal responsibility (ten years) inEngland and Wales’ (Bandalli 2000: 81).
It is evident then that the structure of this paper must take account of a fundamental demarcation line that separates our target age group: on one side are children aged five to nine years for whom the legal concept of crime is irrelevant; on the other side are children aged ten to thirteen years for whom it is wholly relevant. The effects of this demarcation line on the provision and pattern of services for children in each of the two age sub-groups are very considerable.
The scope of this paper, however, reaches beyond the clear distinctions lying either side of the age of criminal responsibility – because it reaches beyond the specific concept of ‘crime’. The interest in children and ‘anti-social behavior’ raises difficult issue of definition and meaning that are in the process of being addressed through current (or very recent) legislation and policy guidance3. The term‘anti-social (Newburn 2002). But many commentators regard the insistence that children and young people be regarded as fully responsible for their behavior and its consequences, and thus treated as morally equivalent to adults, as a defining feature of the current government’s policies on children, young people and crime (e.g. Bandalli 2000; Goldson 1999; Muncie 2000; Smith R. 2003). An early statement of New Labor’s ethic of personal responsibility in relation to youth crime is found in Straw and Michael 1996.
The most recent legislation is the Anti-Social Behavior Act 2003, based on a substantial White Paper that signaled a substantial development of Government policy on the issue (Home Office 2003).
Behavior especially when used in the context of criminal justice concerns is a very recent addition to the official vocabulary of discourse on social order and control.
This contrasts with the state’s concern with the criminal behavior of children and young people, which in its recognizably modern form dates back to at least the mid nineteenth century and in more archaic forms to the middle ages (Muncie 2000; Newburn 2002).
Although ‘crime’ is a fiercely contested concept (Muncie 2001), in legal terms a crime occurs when a specific act that is proscribed in law is committed; an act may have harmful consequences and be regarded as morally reprehensible, but if it is not so proscribed then a criminal offence has not been committed. Anti-social behavior, on the other hand, is not defined in terms of individually proscribed behaviors but rather a set of general conditions; a specific individual act may be legally deemed ‘anti-social behavior’ when it can be shown that it meets those conditions. The meanings attached to the concept of anti-social behavior, as it is currently evolving in political and legal discourse, include:
· It is behavior that is harmful to other people (but not including immediate family members)
· It is persistent and serious (that is, it is not a one-off event and is not of a trivial nature arising from ‘ordinary’ disputes of everyday life)
· It does not necessarily constitute an infringement of the criminal law
· It is (particularly in the case of children and young people) an indicator of the risk that the perpetrator will go on to commit criminal offences.
· It constitutes a serious and widespread social problem and therefore justifies the use of formal, legal interventions.
Examples of what may currently be viewed as acts of anti-social behavior (i.e. that meet the conditions above) include harassment of residents or passers-by, including racial abuse; vandalism and criminal damage; noise nuisance; graffiti; threatening behavior in large groups; substance misuse; begging; prostitution; joyriding and vehicle crime (Home Office 2002). A number of these anti-social behaviors clearly overlap with behaviors that may also be criminal: the borderline between anti-social behavior and criminal behavior is not clear-cut. Others of these anti-social behaviors are, as the name implies, perceived as infringements of social or moral norms, not criminal codes (Muncie 2000).
This concern with social or moral transgressions is reflected in the nature of the sanctions available to deal with the perpetrators of anti-social behavior, which are civil, not criminal, remedies and require only a civil burden of proof. (The requirement of a less rigorous burden of proof helps explain why some behaviors, which are clearly criminal, have been prosecuted using the anti-social behavior legislation.) The sanctions themselves tend to be geared towards the protection of the public by preventing the perpetrator from repeating the behavior, rather than punishing the offender (Home Office 2002) – again offering a contrast with the overwhelmingly punitive remedies deployed against those who commit crime.
The principal sanction available, the Anti-Social Behavior Order (ASBO), prohibits the perpetrator from doing certain things or being in certain places for a fixed period of time (typically two years) but does not impose any penalty as such. However, the legal distinction between anti-social behavior and criminal behavior again becomes blurred since non-compliance with the provisions of the ASBO (‘breach’) can lead the perpetrator to the criminal court and a penalty of up to five years imprisonment; and an ASBO can be imposed by a court at the same time as a sentence for a criminal conviction (for example, a fine) is passed. This also underlines the fact that anti-social behavior is viewed by Government as an issue to be dealt with within the framework of the criminal justice system (rather than, say, a matter for welfare services).
There is a further example of the way that the state’s concern with addressing antisocial behavior creates ambiguity in terms of the nature of the resulting interventions, particularly when the focus is on the behavior of children and young people. This is the Acceptable Behavior Contract (ABC), developed specifically to address the anti-social activities of young people aged between 10 and 17 years (although subsequently used with adults in certain circumstances). The ABC has a curious status. It is approved and recommended by the Government as a form of intervention within the broad framework of criminal justice, but does not result from any formal legal process. Acceptable Behavior Contracts are described in the home office guidance on ASBOs and ABCs as:
Voluntary agreements made between people involved in anti-social behavior and the local police, the housing department, the registered social landlord, or the perpetrator’s school. They are flexible in terms of content and format (…)
They have proved effective as a means of encouraging young adults, children, and importantly, parents to take responsibility for unacceptable behavior. They are being used to improve the quality of life for local people by tackling behavior such as harassment, graffiti, criminal damage and verbal abuse (Home Office 2002).
There is clearly, then, a close overlap of the kinds of behaviors addressed by ASBOs and ABCs, with the critical distinction that a child can become a party to a ‘contract’in the absence of even the civil burden of proof to show that they have committed such behaviors required for an ASBO. In comparing ASBOs and ABCs, the guidance notes that whereas ‘the ASBO is a statutory creation and carries legal force; the ABC is an informal procedure, though not without legal significance’ (ibid; emphasis added). This significance resides in the recommendation, contained in the guidance, that if the anti-social behavior continues and the contract is thereby broken, then that should be used in evidence in applying for an ASBO. There exists, therefore, at least the theoretical possibility of a child aged between ten and thirteen failing to keep to the terms of a voluntary agreement, thereby progressing to becoming the subject of a formal court order, with the threat of custodial sentence for a criminal offence if breached.
The legal status accorded to anti-social behavior thus blurs our understanding of what is, and is not, crime. It also, however, blurs the relationship between age and criminal responsibility. This is because the anti-social behavior legislation allows action to be taken against children under the age of ten if their behavior gives particular cause for concern. Formal orders are available to ban ‘unsupervised’ children fewer than ten from specified public places at specified times (the Child Curfew Order) and to place children aged below ten under supervision for between three and twelve months (the Child Safety Order). Orders are also available to address the failings of parents of such children (Parenting Orders).
The significance of ‘anti-social behavior’ then, from the perspective of this paper, is that it both broadens the range of activities that can bring a child into contact with the criminal justice system and makes possible the earlier intervention of that system in the lives of children. One official justification for this identification of a new range of Legally sanction able behavior and its application to very young children is the need for public protection against ‘low level’ disorders and minor incivilities, both because these are viewed as unacceptable in themselves and because they are seen as indicators of the tolerance of more serious crime (Home Office 2003: 13-15)4. But equally important is the justification that addressing early anti-social behavior by children, or the risk of such behavior, is a key measure in the prevention of the child’s development of more serious offending behavior (ibid: 21-22)5. The focus on prevention provides another of the key issues for this paper.
Prevention
Drawing on the foregoing discussion of crime and anti-social behavior in relation to children, literature will be reviewed using two distinct categories of prevention:
Onset and escalation: the prevention of the onset of criminal and anti-social behavior amongst children who have not previously exhibited such behavior and the prevention of the escalation of anti-social behavior from minor to more serious levels. In both cases, a key concept in supporting preventive interventions is ‘risk’ – the identification of, and provision of services to support, children who are judged to be at risk of engaging in criminal and antisocial behavior is of paramount significance.
Re-offending: the prevention of further offending among children who are officially known to have committed previous criminal offences, i.e. who have admitted guilt and received a Reprimand or Final Warning from the police, both of which become part of the child’s official ‘record’ and, in the case of the evidence base for this justification rests on the famous ‘broken windows’ thesis, developed by academic researchers in the US in the early 1980s and subsequently used as the theoretical underpinning for ‘zero tolerance policing’ (Wilson & Kelling 1982). It is interesting that the UK Government’s current White Paper on anti-social behavior still makes use of the broken window imagery (Home Office 2003: 14).
A further indication of the rapidly evolving state of government policy is that a Green Paper on’ Children At Risk’ is promised for late 2003/early 2004. This will focus on ‘children who are at risk of a wide range of poor outcomes’ including both anti-social behavior and offending and becoming victims (Home Office 2003: 21).
Final Warnings involve referral for participation in a rehabilitation programmer; or have been convicted and sentenced following a court hearing.
There is a third important focus for preventive work: the prevention of children’s involvement as victims of crime and anti-social behaviour6. Again, the concept of risk is significant here, with particular individuals or groups of children identified as more likely to become victims of crime and to require preventive interventions; although interventions are also geared towards whole populations. However, we are not able to deal with research on victimization of children within the scope of this paper.
These different categories of prevention generate a range of different policies and service interventions with children. The development of these policies and practices is shaped by a distinctive theoretical discourse about the causes of crime and anti-social behavior among children and the kinds of psychological, social and cultural factors that contribute to preventing it. This discourse is the product of what we refer to in this review as ‘primary research’ – the study of children and their families and of the varied circumstances that seem to result in some children becoming involved in crime and others not – and ‘evaluative research’ – the study of the effectiveness of particular preventive interventions.
This research is not necessarily concerned exclusively with the prevention of antisocial behavior and crime as the terms are used in this paper; it is often concerned – and particularly where younger children are the focus – with broader concepts such as ‘troubled children’ or ‘children in need’ (see, for example, Buchanan 2002). It is however concerned with identifying the factors that cause children to be at risk of damaging outcomes, of which involvement in crime may be one, and with ways in which such outcomes can be prevented. There is also, moreover, a considerable and highly influential body of research on the specific issue of children ‘at risk’ of criminal involvement and on the most effective means of intervening to ameliorate that risk (for an authoritative overview, see Farrington 2002).
There are clear links to Although the victimization of young people generally attracts much less attention in policy documents than offending, the current White Paper on anti-social behavior does note that: ‘Young people are more often the victims of crime and anti-social behavior than the perpetrators’ (Home Office 2003:22). Crime statistics also show, in fact, that young people are largely the victims of young perpetrators.
Young people assessed as at risk of offending are also likely to be most at risk of being victims of offences, so that strategies to reduce offending and victimization among the young are closely related be drawn out here between the models of risk-identification and prevention used by Criminological researchers and models used by other ‘child care’ researchers relevant to the NECF approach (e.g. Hardiker 1999).
In this review, we address both primary research on the factors associated with the risk of criminal involvement among children, and evaluative research on the range of interventions designed to prevent the commission of crime and anti-social behavior by children.
Crime and Disorder Act 1998
The discussion so far has sought to clarify the key terms contained in the research question that shapes this review. Before setting out the organizing framework for the review, however, it is necessary to describe another of the key structuring topics. This is the Crime and Disorder Act 1998, the first piece of criminal justice legislation enacted by the New Labor government following its election the previous year and, in many respects, a landmark in the history of the state’s response to issues of children and crime (Padfield 2002).
The 1998 Act can be described as a landmark for two reasons. First, as Newburn points out, it provides ‘for the first time, an overarching mission for the whole youth justice system’ (Newburn 2002: 560): Section 37 of the Act states that the principal aim of the system must be ‘to prevent offending by children and young persons’.
Moreover, the Act created, and placed at the heart of the system charged to fulfill this aim, an entirely new set of organizational arrangements: at national level, the Youth Justice Board (a non-departmental public body linked to the Home Office); and in every local authority area in the country, Youth Offending Teams – multi-agency partnerships tasked with coordinating youth justice services within the area. The architecture of service provision in relation to children and crime was thus transformed by the Crime and Disorder Act and subsequent legislation, especially the Youth Justice and Criminal Evidence Act 1999; a transformation that Goldson describes as ‘the most radical overhaul of the youth justice system in fifty years’
(Goldson 2000: vii).
Second, it is through this act that the criminal justice system is empowered to engage with the issue of anti-social behavior and therefore to intervene with children, and the families of children, who have not committed a criminal offence or, indeed, cannot do so because they are below the age of criminal responsibility. As indicated above, a range of sanctions is available to affect these interventions and, while they have been refined and extended in subsequent legislation, it is in the Crime and Disorder Act 1998 that they originate. Further, the 1998 and 1999 acts mark a clear shift from the imperative expressed in earlier legislation to divert young offenders (particularly those without an established criminal record) away from the criminal justice system, to an emphasis on earlier formal interventions intended to change behavior before it becomes entrenched (Goldson 2000: 35-37).To further underline its significance, it is, as noted above, also in the 1998 Act that the presumption of doli incapax is abolished.
4.2 Research question:
1) Why the children involved in crime?
2) Objective:
Research into risk and protective factors:
Research into risk and protective factors:
The concept of risk is central to the concerns of this section. ‘Risk’ is a critical concept in analyses of ‘postmodern’ society and has become a complex and contentious topic in recent years, within criminology as well as other disciplines (Kemshall 2003). Here, the concept is used in a narrower and perhaps simpler way to refer to the presence of factors in a child’s life that, within large population samples have a statistical correlation with anti-social or offending behaviors; in other words, the risk of becoming an offender is statistically more probable if the child experiences or is exposed to certain factors. Conversely, other factors are identified as having a ‘protective’ effect in reducing the likelihood of a child becoming involved in antisocial or offending behavior. (For a discussion of some of the issues involved in using the concepts of risk and protection in relation to children’s welfare, see Hansen and Plewis 2003: 1-5).
The Youth Justice Board Research Note 5 (2001)8 provides the most recent comprehensive review of relevant research on risk and protective factors in relation to children’s involvement in crime and anti-social behavior, and is the principal source for this section (see also Farrington 2002 for a condensed authoritative overview). It reflects and builds upon Farrington (1996) and Rutter et al (1998) – the two major UK reviews up to that time – in distinguishing between individual, psychosocial and society wide features of risk factors. These factors can themselves be both causal and symptomatic of what is broadly referred to as anti-social behavior, that is, they may be factors that generate anti-social behavior or they may be factors that are a result of anti-social behavior. However, it notes that reviews of longitudinal research and meta-analyses have identified connections which are more clearly causal, and can be further differentiated as either direct/proximal or distant/distal. Perhaps the most crucial theme noted is that delinquency, conceived of as entrenched but low-level offending, seems to arise from the way in which: ‘…multiple risk factors cluster.
This substantial and detailed review, published under the name of the Youth Justice Board, was in fact written by a group of academics, including David Farrington who is probably the leading international authority on the topic together and interact in the lives of some children, while important protective factors are conspicuously absent’ (YJB 2001: 8).
YJB 2001 summarizes the effects of protective factors in terms of:
Their directly protecting function – where they represent situations or environments which are opposite to those represented in risk factors, they serve to protect against the initial development of involvement in crime and anti-social behavior.
Their moderating function – where they may moderate the effects of exposure to risk.
The review notes that adoption of this concept of protective factor assists explanations and explorations concerning why some young people are exposed to clusters of risk factors predictive of potential escalation into criminal behavior, yet do not grow up to behave anti-socially or to commit crimes. The concept also provides the basis for intervention programmers aimed at preventing the onset or escalation of anti-social behavior in children.
Protective factors may impact by
· Preventing the occurrence of risk factors
· Interacting with a risk factor to reduce its adverse effects
· Interrupting the developmental and mediational chain by which a risk factor influences or underpins ensuing behavior.
Rutter et al (1998) note that some protective factors represent individual characteristics that are ‘actuarial’ meaning that they are ‘given’ in a way that makes them difficult or impossible to introduce deliberately. However, consideration of these factors is useful not only for predictive purposes, but also in terms of potential intervention, through inquiry into circumstances and situations where the protective effect may be lessened, or through inquiry into the underlying causes of particular patterns, which have been superficially identified but not explored causatively.
Female gender constitutes an example of such an actuarial factor. Other factors, though, are more directly amenable to influence and change through prevention strategies. So, importantly, the concept of a ‘protective factor’ has relevance in terms of both its predictive and preventative properties.
The particular aspects of a young person’s life reflected in these risk and protective factors, following YJB 2001, can be helpfully grouped into categories of Individual, Family, School and Community factors.
Individual factors
YJB 2001, with particular reference to studies by Rutter et al (1998), Farrington et al (1990) and Hawkins et al (1998), identifies a web of connections between three key behavioral manifestations which predispose to both onset and continuation of antisocial behavior. These are:
Attention Deficit Hyperactivity Disorder
Impulsivity
Cognitive Impairment.
The hyperactivity-impulsivity-attention deficit connections were identified in the Cambridge longitudinal study being more than a simple measure for aspect of anti-social and disruptive behavior. Rather, they are identified within this study as typically the starting point for a developmental sequence which leads to some children becoming both persistent and violent offenders.
The issue of cognitive impairment is addressed in the research, but specifically in terms of
Low non-verbal intelligence (Farrington1992)
Difficulty in manipulating non-verbal concepts (Farrington1996)
Poor reasoning skills (Farrington 1996).
All of these factors are seen as significant in terms of the development and consolidation of cognitive impairment (the inability to predict consequences and empathies with victims being two examples of these), but also in terms of their linkage back to wider underpinning factors which interact with, sustain, and are sustained by, these deficits. Similarly, Rutter et al (1998) suggest that a link between ‘The Cambridge Study in Delinquent Development’ is the major British longitudinal research study of factors affecting criminal behavior. It tracks a cohort of 411 males in inner London from age 7 into adulthood (Farrington and West 1990).
The emergence of more extensive aggressive behavior and early bullying behavior may be consolidated through a tendency for aggressive children to be more apt than others to interpret social responses and actions of other children as hostile or malicious. They note that this ‘biased cognitive processing’ can be offset by direct work with children in order to help them interpret cues more accurately and respond more positively.
A range of studies, cited in YJB 2001 (and see also Rutter et al 1998), have highlighted the significance of aggressive behavior as an indicator of increased risk of delinquency, and specific connections have been made between
Aggressive behavior and attention seeking disorders
Aggression and the continuing development of anti-social boys at the transition into adolescence
Aggression which is linked to withdrawal, isolation or hyperactivity especially within the early years. This has been identified as the strongest individual predictor of later delinquency when identified in children 8 to 10 years old by the Cambridge Study in Delinquent Development
Aggression which hardens into the ‘repeated oppression’ (Farrington 1993) of bullying is strongly connected to an increased risk of both offending and violent offending. Bullying in itself reflects a clustering of many risk indicators, including connections with low achievement at primary school, pro-criminal parents, and experience of neglect or abuse. Significantly,
Farrington (1992b) identifies the link between fathers who have bullied and the emergence of bullying behavior in a child, though there is some evidence that boys are more likely to bully than girls. So it would seem that bullying is a catalyst for both onset and perpetuation of the risk factors which precipitate and sustain offending.
In terms of connections between cognitive deficits and wider factors, the resultant emergence of a sense of alienation and lack of social commitment (Hawkins et al 1987) and also of anti-social and pro-criminal attitudes (Jessor and Jessor 1977) are particularly noted. Arising from this, the negative influence of peer groups, who share this sense of alienation and its resultant social attitudes, has been noted with particular reference to drug misuse and early involvement in crime (Thornberry et al 1995), and the extension of criminal careers beyond adolescence (Farrington 1992b, as part of the Cambridge Study). What is not apparently explored in great detail is the possibility of any direct impact of poverty and deprivation on behavioral, cognitive and attitudinal development.
Certain individual characteristics are identified as core protective factors:
Female gender. This is actuarially protective in that studies show that young men commit more offences than young women (Home Office 1997). Notwithstanding similar risk factors in their backgrounds (Graham and Bowling 1995), women are less likely to become recidivist or serious offenders and their criminal careers tend to be shorter, with a peak at 15 years rather than 18 as in males (Rutter et al 1998).
Differentials continue through the range of early risk factors with less harmful effects being evident within young women. What is not evident from research, though, is why this should be, and Rutter et al (1998) note that girls who would otherwise be high risk may be diverted from anti-social behavior by factors which are associated with key relationships, such as differing styles of parental supervision, and even diversion from negative peer pressure by early parenthood, with the close relationships notionally implied by this. They note though that this needs closer investigation, and as we will see later, the effects of early parenthood constitute a recognized risk factor in relation to other factors, and to the reality of its potential effects on relationships.
Resilience of temperament, a sense of self-efficacy, a positive and outgoing disposition and high intelligence. These represent a cluster of individual protectivecharacteristics only partly susceptible to intervention, as Rutter et al (1998) note thatgenetic characteristics impact on elements of personality and intelligence. However,the notion of resilience provides a helpful direction when translating the predictivetool represented by the protective factor into a dynamic means of intervention. It issuggested that, although evidence is sparse, resilience may be especially relevant toqualities which elicit positive responses from adults and peers (ibid). The regularity ofpositive response from adults may encourage the greater social problem solving skillsand belief in their own self-efficacy that resilient children display. Such children arelikely to be more outgoing, easily teachable, and have positively reinforced bonds ofaffection with parents or careers. As a result they are likely to be pro-sociallycommitted and to have an investment in their own futures and in their community.
(See, also, Buchanan 2002: 260, who identifies resilience as ‘The X-Factor’ in the capacity of some children to survive negative experiences).
Family factors
A series of factors around the time of birth appear to be associated with the onset of behavioral problems as the child develops, but this connection is associated with the effects of structural issues, in turn impacting on the capacity of a parent or parent to offer sufficient care to the child (YJB 2001: 8-13). Specific examples are:
Low birth weight, abnormality, and perinatal complications, the effects of which depend on whether or not a child is raised in deprived or disadvantaged circumstances.
Maternal response pre-natally and post-natally, specifically in terms of the interplay between high alcohol and drug consumption, subsequent development of physical and cognitive abnormalities and deficits in the unborn infant, maternal youth and lack of parenting skills. This constellation of factors has been shown to lead more readily to poor performance in school and subsequent delinquency and involvement in crime.
Issues of parental supervision are reflected in risk factors associated with polarities in parenting approaches – risk being embodied in harsh and cruel responses as well as in passive or neglecting parenting (Farrington 2002). Within both patterns:
High inconsistency of approach appears crucial.
Parental modeling through harsh and violent supervision of the child is strongly linked to increased risk of later involvement in violent offending.
Modeling of harsh responses gives rise to learned attention seeking through bad behavior, which is further reinforced through the interaction of inexperienced parents with other inexperienced parents. Still greater reinforcement takes place through the tendency for resultant escalating disruptive behavior to bring about exclusion of the child concerned by peer groups.
Whilst the presence of a biological father has been found by Morash and Rucker (1989), in a review of four longitudinal studies, to be a protective factor, it would seem that this protective effect must be subject to the findings in relation to parental supervision, and could indeed become a further risk factor in some circumstances.
The emphasis on family conflict as a major risk factor rather then the structure of a family would seem to bear this out (Utting et al 1993; Graham and Bowling 1995; Farrington 1996). Another longitudinal study found that the presence of observed affectionate relationships between parents, and existing between the child and a parent or parents, constitutes protection (McCord 1982).
A family history and parental attitudes which exhibit and condone anti-social and criminal behavior appear to be risk factors in their own right, quite apart from parental skills and responses (Rutter et al 1998). It has been observed by Hawkins etal (1992) that parental modeling and favorable attitudes to drug use are interlinked, leading to greater likelihood of drug abuse in the adolescent child and subsequent adult, which might seem to be reflected within the wider span of modelled procriminal behavior. What seems not to have been demonstrated in research is the interplay between the impact of harsh, or passive, hence inconsistent parenting, and pro-criminal modeling.
Low income, poor housing and large family size appear, in interplay rather than in isolation, to be factors which increase the likelihood of developing delinquency (Utting etal 1993). Importantly, direct links with economic class have been found to be weak, compared with more specific measures of poverty and its impact. Rather, the impact of the stress caused by low income and the resultant reduction in life-chances and resources seems to be more strongly indicated – although the association between offending and low income appears, in the Cambridge study, to be strongly indicated in itself (West 1982). Again, a cumulative effect has been observed in adolescent young men where unemployment appears linked to greater likelihood of escalation in offending. Specifically, though this occurred among young people who were already at increased risk of offending as a result of their upbringing in a family of low income and the effects of the resultant parental stresses (Caspi and Moffitt 1993; Conger et al 1995).
In turning to consideration of family factors which can enhance protection, bonding and warmth of social relationship with parents or carers has been identified as a crucial protective factor (Farrington 2002). Where conflict and splits in families exist it has also been noted that a strong relationship with one parent protects the child in relation to the development of anti-social behavior (Dubow and Luster 1995). The Communities that Care project10 and its underpinning theoretical base, known as the social development model (Hawkins and Catalano 1992), extended the concept of social bonding to include relationships between children and teachers and peers who model positive and pro-social behaviors, and through these, with their communities.
The connection between the valued relationships and the unwillingness to put these in jeopardy through anti-social behavior has been identified as a core protective ‘cluster’.
The previous cluster connects closely with the identification of healthy attitudes and modeling of pro-social values as protective factors in their own right, highlighting the significance of the predominant norms and values which surround the young person, particularly in relation to his or her valued relationships. A third connection to the social bonding cluster is the availability of opportunities for involvement, use of social and reasoning skills, recognition and due praise. Availability of these opportunities at the heart of the child’s core relationships takes the form not only of the presence of those relationships, but also of ensuring that the child has the capacity to use social and reasoning skills within their personal relationships and educational and familial settings (Rutter et al 1998).
Evaluation of prevention programmes with a family focus
Farrington and Welsh (1999, 2003) reviewed, using meta-analysis, a number of British, Canadian and North American programmes which included or focused on intervention with families, and in so doing identified significant information relating to the effectiveness of these interventions in a protection and prevention programme, as well as to such programmes overall. Programmes were only included in the reviews if they met strict methodological criteria.
Communities that Care is a programme that originated in the US but has subsequently been implemented in the UK. It is discussed more fully later in this section.
Farrington and Welsh (1999) undertook initial evaluations of programmes which included family-based interventions, where children were showing early risk indicators of disruptive behavior, or developing patterns of delinquency. It emerged that family interventions were often effective in reducing the risk indicators to some extent. Parent education was particularly effective, especially in the setting of home visiting, day care or formal parent management training. Some large scale and well designed programmes with a multi-disciplinary community focus were found to be ineffective; the primary reasons for this were identified as lack of parental commitment and participation, and also poor attendance and commitment from the young people with whom programmes of intervention were implemented.
Farrington and Welsh’s further review and meta-analysis (2003) centred on programmes where the family was the focus of intervention. Whilst endorsing the effectiveness overall of family-based intervention, particularly parent education programmes, it indicated that greatest effectiveness lay with programmes in settings other than schools, and with programmes which were based on cognitive-behavioral approaches. Whilst positive effects on risk indicators were widespread, there were some differentials in terms of greater effectiveness where specific kinds of offending were targeted (for example, violent offending) rather than more diffuse offending behavior. Overall, it appears that specific focus, development of positive adult modeling and reinforcement, and approaches (both therapeutic and envir