DEFINITIONS of child and criminal responsibility are controversial subjects across the globe. Every country has its own child protection laws, institutions, mechanisms and procedures and every country has set its own definitions of child and criminal responsibility in its child protection laws. Internationally accepted definition of child under UNCRC is ‘a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier’.
Under the above definition, a child can be any person below the age of eighteen years under international law, but alongside it doesn’t restrict the countries to set the age of child up to maximum age of eighteen years. Countries can define a child by setting the age less than eighteen years. Based on this proposition, countries across the world define a child as young as seven years of age and goes up to eighteen and above years of age. So, an under-eighteen years old individual across the world concurrently falls in the category of child under international law as well as an adult under domestic laws of the country, if the domestic laws define a child by setting the maximum age less than eighteen years. This situation becomes more complicated when an individual who is considered child in his native country and when goes to other countries, is considered adult due to variation in the definition of age of child in domestic laws of the countries.
International standards for child protection also set the age of criminal responsibility for a child to be criminally liable for any offence. This age ranges from 14 to 16 years old as adopted by UNCRC Committee in 2019 in its general comment number 24. It also emphasizes the countries to adopt the higher minimum age of criminal responsibility, i.e., 16 years onwards. This means that if an individual of 16 or above years old commits an offence, that will not be an offence under international law and that child offender will be presumed non-delinquent, as he has not committed any offence. Regardless of the above international law definition of criminal responsibility, every country sets its own definition of criminal responsibility. Countries across the world define the age of criminal responsibility as low as 7 years of age and goes up to 21 years of age. Some countries set no minimum age of criminal responsibility on
basis of plea that a child would only be held responsible for his act/offence, once he becomes aware of right and wrong of any act and state should prove this awareness in the justice system. So, if an under-eighteen year old individual commits an offence across the world, it concurrently falls in the category of non-delinquent under international law and a delinquent under domestic laws of the country, if the domestic laws define the maximum age of criminal responsibility below the age of 18 years old or below the age of offender. This situation also becomes more complex when an individual who commits an offence in his native country and is considered non-delinquent and when goes in other countries and commits the same offence, is considered delinquent due to variation in definition of age of criminal responsibility in domestic laws of the countries.
In the past, several cases of child abuse and exploitation were occurred around the world, in which an older or same age group child/children who by physical or mental development is/are in a relationship of responsibility, trust or power over another child, committed abuse/exploitation with that vulnerable child. The abuser child/children were acquitted from the cases by claiming the exemption from criminal responsibility for certain age-group people. Moreover, in some child-on-child abuse cases, because of non-reporting of abuse by the child survivor of abuse, the child perpetrators couldn’t be prosecuted/punished.
An individual below the age of 18 years or below the age limit of criminal responsibility (14 to 16 years) can have attained sufficient mental maturity or rational understanding to judge the nature and consequences of his acts, conducts, omissions and offences committed by him as compared to individual who is above 18 years of age or falls within the age limit of criminal responsibility (14 to 16 years) and who has not attained sufficient mental maturity or rational understanding to judge the nature and consequences of his acts, conducts, omissions and offences. Definitions of child and criminal responsibility under UNCRC are controversial subjects due to variation in ages in domestic and international laws. This makes children vulnerable for abuse, neglect and exploitation with them and needs to be addressed by amending and harmonizing the definition of child and criminal responsibility in international and domestic laws. In my view, definitions of child and criminal responsibility should focus on an individual’s cognitive, emotional, psychological and social development, rather than age. A forensic medico-legal expert, at the state’s expense, should assess the individual’s mental maturity and rational understanding to determine whether they are a child or adult, or criminally liable for their actions. Based on the above discussion, the definitions of child and criminal responsibility can be rearticulated as;
Definition of Child: A child means a human being of any age who has not attained sufficient mental maturity or rational understanding to judge the nature and consequences of his acts, conducts, omissions and offences, provided that such sufficient mental maturity or rational understanding shall be diagnosed medically by a forensic expert. Definition of Criminal Responsibility: A human being of any age shall not be criminally liable for engaging in commission of offence, who has not attained sufficient mental maturity or rational understanding to judge the nature and consequences of his offence, provided that such sufficient mental maturity or rational understanding shall be diagnosed medically by forensic expert.
—The writer is Advocate High Court & child rights expert and former program policy advisor at National Commission on the Rights of Child, Govt of Pakistan, Islamabad.
(adv.wajahat.ali@gmail.com)
