“We are not saying that kids who offend don’t need to take responsibility for their actions,” Gardiner argues. “But that is different to criminalising children.
“We know what works to set up a better path for kids is growing their maturity, individual attention, and improved mental health support where it’s needed. This is all achievable through educational and therapeutic measures.”
Out of step
Internationally, Australia has one of the lowest ages for criminal responsibility in the world, a legacy from our colonial past. Many European countries including Germany, Italy and Spain have a minimum criminal age of 14. The UN Committee on the Rights of the Child considers 14 to be the absolute lowest acceptable age in light of current scientific understanding, and encourages parties to the Convention to consider a higher minimum age such as 15 or 16 years of age.
What does the science say?
Dr Mick Creati is a pediatrician and Senior Fellow with the Royal Australasian College of Physicians. He knows our current laws criminalise normal childhood behaviour and trauma. Behaviours children are being charged with, for example petty theft or damage to property, are behaviours within the normal range of what one would expect, given what we know about the development of the brain at this young age, and the frequent histories of trauma and neurocognitive difficulties in children in the justice system. “Their behaviours are frequently impulsive acts,”
he says, “part and parcel of the poorly developed decision-making skills, going along with their peers, and testing boundaries.”
A ten-year-old, he notes, “does not have fully developed decision-making skills. One’s ability to realise the consequences of your actions is not fully developed until you’re 25.
“Trauma and neglect can have serious impacts in a child’s brain, resulting in significant neurocognitive deficits and this can express itself as problematic behavior”.