How liable are children for crimes?



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by Randima Attygalle


"I don’t know what happened at that time", the 13-year-old suspect from Badalkumbura, Moneragala, who stabbed her six-year-old sister with a knife, over a quarrel over a snack, confessed to the police. Her confession to the killing of her younger sister, although claiming that she was oblivious to what was happening, revealed a psychological confusion she was battling with according to the police sources.


Sibling preference


Born as the eldest daughter to Muslim parents, both who had been married previously with grown up children by those marriages, the suspect harbored resentment against her parents for preferring the younger sister to her. Her confession to the police had revealed this mental distress; and the insecurity prevalent in the home had furthered aggravated her problems. Her mother has left for Middle East to work as a housemaid when the deceased child was quite small, entrusting the children to the father’s care. She was to leave for Middle East again in a few days time when the tragedy struck and the older girl was to be sent away to a hostel.


Having had to shoulder the burden of all domestic chores and looking after the younger sister in the mother’s absence, the 13-year-old’s schooling came to a halt a few years back. Police investigations had also revealed that she was left to her own devices during day time, finding comfort watching Tamil movies on television.


Deprived of maternal comfort and education, she was mentally traumatized convincing herself that the younger sister was loved more by her parents. In her confession she had also referred to a recent incident where the radio in the house was broken accidentally and she was reprimanded by the father over that.


Boondi fight going too far


On Thursday, 21st evening when the father who is a mechanic, returned home with a parcel of boondi (a snack) and the suspect accused him of giving a larger share to the dead sister. When the argument went too far, she was once more chided by the father and she took the younger girl to the thicket behind the house and stabbing her in the abdomen with a sharp knife which the mother had brought from abroad. The missing child who was soon found lying in the thicket with several cut injuries on her back and hands was rushed to the Badalkumbura hospital by her parents who claimed that she had fallen off a tree. The police investigations revealed that a weapon had been used on the deceased and the 13-year-old suspect was taken into custody. According to police sources, the suspect who is presently in the custody of a Remand Home for children is to be produced in courts on September 5.


Age of criminal liability


The legal position towards the suspect who is a minor within the meaning of the law of the land (the age of majority being 18 years) with special reference to the Children and Young Persons Ordinance (CYPO) and sections 75 and 76 of the Penal Code, is interesting to delve into. United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) stipulates that the minimum age of criminal responsibility differs widely among nations owing to history and culture. The modern stance towards this is to consider whether a child, by virtue of his/her individual judgment and understanding, can be held responsible for a crime.


The notion of these rules is aligned with the principle of doli incapax which means that at certain ages, children are incapable of distinguishing between right and wrong and particularly what is ‘seriously wrong’. Section 75 of our Penal Code establishes the minimum age of criminal responsibility at eight years. Section 76 provides that a child between the ages of eight and 12 shall be criminally responsible, if he has ‘attained sufficient maturity and understanding to judge the nature of consequences of his conduct at that point of time.’ It’s the discretion of the judge to hold a child criminally liable.


On the understanding that the present law relating to criminal accountability is ‘not in keeping with the internationally accepted age of criminal responsibility’, the Ministry of Justice has tabled a draft to amend the Sections 75 and 76 of the Penal Code. Abiding by Child Rights Convention (CRC), it is felt that our present age of criminal liability is too low and below internationally accepted age of criminal responsibility. Hence a committee represented by diverse stakeholders committed to criminal justice and child welfare has proposed an amendment, to sections 75 and 76 of the Penal Code.


Secretary, Ministry of Justice, Kamalini de Silva, told Sunday Island that according to the observations made at the 55th session of the Committee on the Rights of Child, ‘the legal minimum age of criminal responsibility (which is eight years) remains very low’ and has recommended to raise it to an ‘internationally acceptable level.’ She pointed out, in determining the age attention must be paid to prevent children being abused by adults to commit crimes. "If the age is fixed too high, there could be space for abuse to which we must pay heed." The age of criminal liability in England and Australia is 10 while Canada has fixed it at12 and Denmark at 14 years.


Gap between law and practice


"Every criminal presents the overall health of a society. We prefer to deal with the messenger and ignore what the message says about all of us. By criminal liability we seek to fix an age at which children can be considered responsible for their actions. The current age which is eight is too low and 12 years would be more reasonable," says Sajeewa Samaranayake, Attorney-at-Law and Consultant on Child Welfare.


Although we have provisions for separate juvenile proceedings, we are still awaiting the day when the judiciary will decide to hold completely separate sessions for children where the normal criminal environment of the Magistrate’s Court is not prominent, observes Samaranayake. "Today all children, not only offenders but also victims receive the same kind of treatment from the system. It does not recognize children as children. This is the basic flaw."


Section 76 of the Penal Code is another instance where the gap between law and practice can be highlighted, he adds. "While children between 8 and 12 years of age are only liable if they have sufficient maturity and understanding, over 90% of children who are produced by police are poor and unrepresented in court. As a result this inquiry is rarely conducted." The best example for us to learn lessons from is the Scottish Children’s Panel where a community based restorative model is used, according to Samaranayake. Those who sit in the panel include school teachers and social workers who have intimate knowledge about the child. They have developed a very friendly and personal yet professional approach to children’s matters. Over here the Mediation Boards are an example for such an approach, he adds.


What triggers violence in children?


Dr. Pubudu Pandithasekera, Consultant Psychiatrist, Provincial General Hospital, Badulla, says psychological distress experienced by children are triggered by certain regional socio-cultural and economic characteristics. For instance, in the area where the 13-year-old accused comes from, child abuse- both physical and sexual, parental deprivations (due to mothers going to Middle East), parental conflicts that involve violence that the children witness (eg. alcoholic fathers assaulting mothers), child labour (in paddy fields) are identified. "In this part of the country parents have poor parenting skills, mainly due to poor education and sometimes children are given the burden of attending to day to day chores at home which they cannot handle."


When questioned as to what generally cause children to be violent towards others - be it physical or psychological, the Consultant said, "the first category is children who have psychiatric illnesses. Mental retardation, conduct disorder, sibling rivalry disorder and attention deficit hyperactive disorder are common illnesses associated with aggression and violence. These disorders should be assessed and treated by a qualified psychiatrist."


The second category is those who do not have any psychiatric illnesses per se. Children who are under psychological stress tend to behave different from adults, explains Pandithasekera. As children can’t express their distress in words they put out their feelings in other ways such as school refusal, social withdrawal, bed wetting, stammering, poor school performance and anger outbursts like temper tantrums. Aggression and violence can be another way of communicating their psychological distress.


Substance abuse is another trigger and the psychiatrist is critical of the exposure of children to violence on media. "We must not forget the drawbacks in the psychiatric service delivery mechanism," he reflects, adding that there is no Consultant Psychiatrist in the very district where the tragic incident occurred. "Services should be decentralized. It is not fair to upgrade psychiatric facilities only in major cities while rural areas are overlooked and neglected."


Socialization and self empowerment


Our behavior is shaped by our understanding of the societal factors, the socialization process bearing a direct impact on such behavior. "The ‘quality’ of socialization empowers us to face day-to-day challenges and female migration is a challenge for both the adult worker and their families left behind, for which empowerment is called for," explained Mangala Randeniya, Sociologist and Deputy General Manager, Foreign Relations and Publicity, Sri Lanka Bureau of Foreign Employment (SLBFE). Family, the most important social unit, is responsible for ‘stability’ and ‘transmission of culture’, says Randeniya. "The sense of roots is provided by family. It is the family which provides initial recognition and fosters self esteem in an individual which is further honed by the school. When both these social institutions fail in their roles, an individual will develop an alienated mentality." This alienated mentality, as he illustrates, drives one to feel ‘I’m lost’ or "I’m not wanted by others,’ which will eventually harbor hatred towards those around you.


Dilemmas of migrant workers


When understanding, accommodation and reconciliation is not possible, such pent up violence is developed by degrees until the final outlet is sought, be it by an adult or a child. "As authorities committed to the wellbeing of migrant workers and their families, we strive to drive this message home," said Randeniya who cited several measures adopted by the SLBFE in assuring the safety of families of migrant workers, who are often left vulnerable. The mandatory pre-departure program meant for migrant workers, known as ‘Family Day’ initiated several years ago by the SLBFE, empowers both spouses in handling migration. "We empower them on various issues such as child safety, dealing with temporary parting of a loved one etc. The mandatory Family Background Report which needs to be furnished by potential female migrant workers, launched last year, enables social officers to get a one-to-one understanding of the family background of migrant workers, especially to determine if female workers have very small children, in which case we now direct them to self employment schemes etc."
 


WHAT HAPPENS TO A MINOR WHO ENTERS THE CRIMINAL JUSTICE PROCESS

* Once a minor suspect is produced before the Magistrate, if the offence is bailable the family/guardians must be able to deposit bail and find sureties if required for the suspect to be released on bail


Sajeewa Samaranayake, Attorney-at-Law and Consultant on Child Welfare points out in many cases there is no parent or responsible person to whom the child can be entrusted.


 * If the bail cannot be furnished they end up being detained in a Remand Home for Children. When temporarily detained like this for 28 days at a time as per the Children and Young Persons Ordinance, they cannot be sent to school as their stay is regarded as temporary. "What can be done is to provide their school books so they can continue to study. Unfortunately Court and Probation do not ensure this as a regular practice."


Lack of legal aid for children is also a serious issue. As a result they suffer injustices that an adult would have generally challenged and corrected. Their families also face many obstacles in staying in touch with the child and keeping regular communication. "The system does not have sufficient respect for the rights of the family in these cases."


* In a case of murder the court (in terms of section 53 of the Penal Code) will not sentence the child to death if convicted but can order the child to be remanded in a Remand Home at the President’s pleasure. This will apply if the child is under 18 years of age at the time of sentencing.


 


 
 
 
 
 
 
 
 
 
 
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