Offenders under 14 – children exempt from criminal responsibility – are not getting sufficient help to address their behavioural issues because specialised structures are not yet in place, according to Children’s Commissioner Helen D’Amato.
She said her office had advocated raising the age of criminal responsibility from nine to 14 but this was always coupled with “strong exhortations to the government of the day to set up community-based therapeutic structures for child offenders”.
Unfortunately, she said, such structures were still lacking.
Last July, the government said that children with behavioural problems would receive specialised services. It said an inter-ministerial committee – comprising the health, education and social solidarity ministries – had been established to develop a comprehensive strategy aimed at addressing the well-being of these children and adolescents.
As things stand, the small minority of delinquent children are being empowered even further
In February 2014, the law was changed to raise the age of criminal responsibility to 14.
This means that the law does not deem an offender under 14 to fully understand the consequences of his or her actions and, therefore, the law cannot attribute any form of criminal responsibility to the offender. It does, however, allow the police to take action against the child’s parents or guardians and the courts can impose conditions to address the child’s behaviour.
Last week, The Sunday Times of Malta reported that a 16-year-old girl was angered by the change in the law, which barred the police from prosecuting her brother. She claimed that he had raped her when she was 10 years old. The police could not intervene because the brother was 13 at the time the alleged crime occurred.
Malta Union of Teachers president Kevin Bonello also raised the issue, ordering a one-hour strike at the Ħamrun boy’s school due to the uncontrollable behaviour of some students, whose age protected them from facing court proceedings.
“No, we absolutely disagree [that children under 14 should be exempt from all criminal responsibility], not just as trade unionists but also as teachers. Unfortunately, as things stand, the small minority of delinquent children, of whom every country has a percentage, are being empowered even further,” he said, adding that he was aware that some children needed support, which was why parents or guardians should at least be held responsible.
Ms D’Amato said that her stand in favour of raising the age to 14 was not synonymous with thinking that children should escape responsibility. She believed that criminal responsibility – the heaviest and most onerous responsibility for a person of any age – was beyond the mental and moral capacity of children as young as 13.
“Not attributing criminal responsibility did not mean the child’s actions were socially acceptable... Such behaviour is invariably a clear sign that the child’s mental and moral development is not following its proper course and/or that it is fettered by underlying emotional issues.
“Hence, an instance of unlawful behaviour on the part of a child under 14 should not be shrugged off as a particularly daring act of mischief but should elicit the special attention and intervention of the child’s parents or guardians as well as the caring and pedagogical professions,” she said.
Ms D’Amato stressed that the victims of such offenders should not be forgotten and they too needed to be supported.
“While it is important that support services for juvenile offenders and their victims are available, accessible and of high quality, it is equally important that the necessary mechanisms are in place to ensure that both parties to the crime are directed as rapidly and efficiently as possible to these services,” she said. Such a necessity should be met through improved collaboration between the justice system and the care system, Ms D’Amato said.