Theorising Children's Rights in Youth Justice: The Significance of Autonomy and Foundational Rights

This paper develops a theoretical approach to children's rights in youth justice, located within a wider rights‐based theory of criminal justice which emphasises the centrality of citizens' autonomy. Understanding what is special about children's rights in the youth justice system requires an understanding of how children's autonomy differs from that of adults. One difference is that within the legal system children are not considered to be fully autonomous rights‐holders, because childhood is a time for gathering and developing the assets necessary for full autonomy. These assets should be protected by a category of ‘foundational’ rights. It is argued that an essential component of a rights‐based penal system for children is that it should not irreparably or permanently harm the child's foundational rights. The concept of foundational rights can then underpin and strengthen international children's rights standards, including those relating to the minimum age of criminal responsibility, differential sentencing for children and adults and a rights‐based system of resettlement provision.     

Taking the Rights of Parents and Children Seriously: Confronting the Welfare Principle under the Human Rights Act

This article argues that resistance to the Human Rights Acthas built up in the context of disputes relating to childrenand that such resistance is founded in the attachment of thecourts to the welfare or paramountcy principle as currentlyconceived—the principle that the child’s welfareautomatically prevails over the rights of other family members.It argues that the failure to take account of Convention argumentscould only be a legitimate stance if there was no conflict betweenthe demands of the welfare principle and those of the Conventionguarantees, but that in fact the approach of the European Courtof Human Rights differs considerably from that of the UK courtssince it seeks to balance the rights of different family members.The article goes on to argue that, taking account of the Strasbourgstance and of the already established domestic recognition ofthe presumptive equality of competing qualified Convention rights,it is time to accept the adoption of a new model of judicialreasoning in the context of disputes over children—the‘parallel analysis’ or ‘ultimate balancingact’.     

正义:法律与权利

引论 :正义是人之行为的一种属性我们选用“正当行为规则”一术语来指称那些有助益于自生自发秩序之型构的“目的独立”的规则(ｅｎｄ -ｉｎｄｅｐｅｎｄｅｎｔｒｕｌｅｓ) ,并以此与那些“目的依附”的 (ｅｎｄ -ｄｅｐｅｎｄｅｎｔ)组织规则相对照。前者是内部规则 (ｎｏｍｏｓ) ,而内部规则不仅是“私法社会”〔 1〕 的基础 ,而且也是使开放社会得以形成的基础 ;而后者 ,就其作为法律来说 ,乃是确定政府组织问题的公法。然而 ,我们并不认为 ,所有事实上有可能为人们所遵循的正当行为规则都应当被视作是法律 ,而且我们也不认为 ,每一条构…     

Obtaining Information from Children in the Justice System

Even young children can provide accurate accounts of experienced events if adults question them skillfully. However, most justice system personnel receive little training in evidence‐based methods to question children non‐suggestively and with developmental sensitivity. This paper summarizes key research findings about child forensic interviewing. It concludes with recommendations for judges and other justice system personnel who must engage in age‐appropriate consultation with children and outlines steps judges can take to establish evidence‐based interviewing practices by court personnel in their jurisdictions.     

从“亲本位”向“子女本位”演变的亲子法

近代法国、德国、日本、我国台湾地区的民法典规定的亲子制度采用了亲本位。通过修订,现代法国、德国、日本、我国台湾地区的民法典规定的亲子制度采用了子本位。我国在制定民法典亲属编时应该坚持后一种立法主义。     

The Swansea Bureau: A model of diversion from the Youth Justice System

The Swansea Bureau is an innovative initiative designed to divert young people out of the formal processes of the Youth Justice System. The Swansea Bureau extends beyond simple diversion grounded in minimal or non-intervention and into tackling the underlying causes of youth crime through mechanisms that normalise youth offending and promote prosocial behaviour, children's rights, youth participation and the engagement of both parents/carers and the local community. Inter-agency working is pursued in a political, strategic and operational context of viewing young people as ‘children first, offenders second’. This article discusses the development of the Bureau and explores how this child-orientated model is beginning to yield positive results in terms of decreases in first time entrants into the Youth Justice System and reductions in reconviction. The Bureau process has also elicited widespread positive qualitative feedback from key stakeholders regarding its engagement with Welsh national policy, parents/carers and the children's rights agenda.     

Discipline, Assault, and Justice: Violent Parents and the Law

This article calls attention to an unacceptable double standard in American law: the lenient treatment of parental violence against children when compared to other forms of physical assault. Parts II and III critique the generous privilege of physical discipline extended to parents and the differential state response to violence when the victim is a child in the assailant's family. Appeals to family privacy and parental autonomy to justify the current double standard are examined and found wanting. Clearer and much stricter limits on corporal punishment are recommended and defended as constitutional. We further recommend that parental violence which falls outside these limits should be treated no differently than other misdemeanor and felony assaults. These two proposals give children the protection against domestic violence to which they are entitled as a matter of right and prudence.     

Kids are Different: The United States Supreme Court Reforms Youth Sentencing Practices for Youth Prosecuted in the Criminal Justice System

In a series of decisions issued between 2005‐2016, the United States Supreme Court relied on emerging scientific research detailing the developmental differences between children and adults to revamp its juvenile sentencing jurisprudence under the Eighth Amendment. The research established that youth’s developmental immaturity reduces their culpability for their criminal conduct, while also demonstrating their heightened capacity for change and rehabilitation. The Court focused on the most extreme sentences for youth, banning the imposition of the death penalty on youth under the age of eighteen in Roper v. Simmons (2005), and severely limiting the availability of life without parole sentences even for youth convicted of murder, in Graham v Florida (2010) and Miller v Alabama (2012). This article traces the Court’s evolution in reviewing sentences for youth in our justice system, and considers how the Court’s reasoning in these cases may influence further reforms in the justice system’s treatment of youth looking ahead.     

An Application of Foucauldian Concepts to Youth in the Criminal Justice System: A Case Study

In this paper, I examine the relationship between youth and the Canadian youth justice system within a Foucauldian framework. Of particular interest are the implications inherent in the interconnectedness of agencies and organizations of social control in the classification, detection, and treatment of youth in conflict with the law. I focus my analysis on the policies of one youth correctional facility located in the province of Saskatchewan to provide a practical application of Foucauldian theoretical concepts to an analysis of youth and formal social control. Lauren Eisler completed her Ph.D. in sociology at the University of Saskatchewan and is currently an Assistant Professor of Criminology at the Brantford campus of Wilfrid Laurier University. Her work focuses on the relationship between the institutional control of disadvantaged youth and the public constructions of youth culture as criminogenic. She has done extensive consulting work for government and community organizations in Canada.     

Unintended and Unavoidable: The Failure to Protect Rule and Its Consequences for Undocumented Parents and Their Children

Parents without immigration status in the United States regularly face the threat of deportation and separation from their children. When an undocumented parent is brought to the attention of law enforcement through the child welfare system, they also face the potential of the loss of legal custodial rights to their children. The child welfare system and immigration enforcement mechanisms operate independent of one another with little regard for how actions in one can impact a parent's legal rights in the other, often permanently separating children from their parents. This article examines the particular issue of undocumented parents who are charged with the failure to protect their children from witnessing or otherwise experiencing abuse committed by a third party. It explores how such a charge, whether founded or unfounded, can result in loss of eligibility for immigration relief to which the undocumented parent would otherwise be entitled, as well as deportation of the parent and permanent separation of parent and child. These issues are situated within the larger context of the normative guideposts of both family and immigration law, namely, the best interests of the child and family unity. It identifies issues for further academic inquiry as well as tips for practitioners who may represent undocumented parents in either the family or immigration systems.

Key Points for the Family Court Community:
• Learn about the potential consequences under family law and immigration law when an undocumented parent's child is abused by a third party
• Gain strategies for planning with undocumented parents to avoid the loss of the custody of their children in the event of a sudden deportation
• Be able to identify and address particular concerns for clients who are undocumented victims of domestic violence

     

Implementing Equal Justice for Parents in Washington: A Dual Approach

In many states, legal representation for parents of dependent children is inadequate and can be a source of delays in securing permanency for children and unnecessarily protracted court proceedings. Often, such parents also face barriers to accessing services and independent evaluators. These issues are being addressed in the state of Washington through two approaches. The first is a successful enhanced legal representation program that has substantially improved case outcomes. The second is a statewide committee using innovative means to examine systemic responses to the challenges of the Adoption and Safe Families Act.     

论刑事司法中的人权保护

2012年人权入法是我国人权保护工作的又一里程碑。但当前我国刑事法学理论界和刑事司法界均存在这样一种认识误区:将刑事法律当成被追诉人的大宪章,过于强调保护被追诉人的人权,有的甚至提出了宁可错放,也不错判的主张。这种观点不但与三大人权公约冲突、自身存在逻辑矛盾,而且有碍司法公正。事实上,无论是从犯罪的本质、刑罚的根据、刑法的调整对象看,还是从两法的目的与任务看,刑事司法中保护的都应当是包括被害人、被追诉人在内的全体公民的人权。保护方式有三种:通过打击犯罪、消除犯罪对全体公民人权的威胁来直接保护;通过限制刑罚权,防止其对犯罪人人权的过度侵害来间接保护;通过限制刑罚权,防止其对无辜者的侵害来间接保护。将刑事司法的目的与任务定位为保护全体公民人权有利于促进司法公正。