Who is a child?

The incidence of children in conflict with the law has been steadfastly on the rise. This is present day reality and a startling fact of the nature of our society. The challenge is to ensure that the juvenile justice system is infused with the ideals and mechanisms to ensure the promotion of the rights of the child while at the same time securing the society’s need to be protected, even from our children. The purpose of the juvenile justice system should be to view the juvenile offender not always as a criminal, but as an individual valuable to society who is in need of guidance and rehabilitation. The most succinct and internationally accepted statement on the rights of the child is the United Nations Convention on the Rights of the Child (UNCRC), which has been signed and ratified by the government of Trinidad and Tobago on behalf of its people.

Under the UNCRC, Article 1, a child means ‘every human being below the age of 18 years.’ The convention also states in Article 40(3) (a) that state parties ‘shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognised as having infring-ed the penal law and in particular; the establishment of a minimum age below which children shall be presumed not to have the capacity to infringe penal law.’ Perhaps the most obvious inconsistency between our domestic law and our international obligations under the UNCRC is in relation to the definition of the child under national law, more specifically the Children’s Act and the Summary Courts Act. The Children’s Act Chap 46:02 section 2 defines a child as ‘a person under the age of fourteen years’ and a young person as ‘a person who is fourteen years of age or upwards and under the age of sixteen years.’ The severe consequence of such definition of a child and young person in our legislation is that persons between the ages of 16-18 are unprotected and would be regarded as adult offenders. This means that they are open to be prosecuted in the same manner as an adult offender.

However, the Children’s Act in section 79 appears to recognise in one instance the definition of a child as referred to in the UNCRC. This section disallows the death sentence or life imprisonment to be pronounced or recorded against a person under the age of 18 years.  He/she is instead to be detained at the State’s pleasure. Although, section 79 is in accordance with article 37 (a) of the UNCRC which states that capital punishment should not be imposed on persons under the age of eighteen years, it leads to further confusion. Such a section implies that other forms of punishment imposed on adult offenders are permissible for persons between the ages of 16-18.

The inconsistency between our national laws and the UNCRC is further highlighted by the fact that there is no minimum age of criminal responsibility stated in our legislation. The Summary Courts Act Chap 4: 20 section 2 defines a child as above 7 years old and below 14 years old. This section implies that the youngest age that a child may be criminally liable for his acts is 7 years old. This means that theoretically a standard 2 child in the primary school system can be held criminally responsible for their acts. Such a situation is a breach of children’s rights. It should also be noted that both the Children’s Act and the Summary Courts Act defines the child solely with reference to age limits. Such definitions fail to take into account the capacity or understanding of a child. As such, the special circumstances of each child are not considered in determining the minimum age of criminal responsibility.  The courts are forced to rely on the common law concept of doli incapax to consider the level of the child’s understanding of the nature of the crime.

This situation brings into the fore the need to institute proper legislation to define “the child” in a manner that is consistent with our international obligations and the special circumstances of the child. Without such a definition we cannot successfully promote the rights of the child outlined in the UNCRC since we do not possess the fundamental framework to do so, that is, a definition of “the child” consistent with that of the UNCRC.