Criminal Law - Definition of 'Juvenile' and 'Child'

HISTORY:

Until the nineteenth century, the only recognition of childhood as a distinct period of life for criminal law purposes was the defence of doli incapax (Latin for incapacity to do wrong). At English common law, children under 7 years of age were immune from prosecution, while between the ages of 7 and 14, there was a presumption of incapacity, which, if not rebutted by the prosecution, meant that they could escape criminal sanction. However, there were no separate juvenile justice systems, and older children and adolescents were subjected to punishments such as hanging or imprisonment in penitentiaries with adults.

Towards the end of the nineteenth century, as part of a broader movement of social reforms that included the enactment of child labor laws and the establishment of the first child welfare agencies, the first reformatories and training schools were established to confine child and adolescent offenders separate from adult criminals. The first Juvenile Court was established in the United States by the state of Illinois in 1899.

SOME DEFINITIONS:

 A . ETYMOLOGICAL MEANING:

Child - Cild "child," from kiltham (source of Gothic kilþei "womb"), unrelated to other languages. Also meaning "a youth of gentle birth" (archaic, usually written childe). In the 16 Century, especially "girl child."

The plural began in at first cild, identical with the sing., then forms cildru (gen. cildra) arose, only to be re-pluraled in 1175 as children, which is thus a double plural. Plural cildre survives in Lancashire dialect childer and in Childermas "festival of the Holy Innocents". Childhood is originally as cildhad; childish is rooted in cildisc; childlike (a good-sense variant) is first attested 1586.

Juvenile – From 1625, juvenilis "of or belonging to youth," from juvenis "young person," originally "young." Hence juvenilia "works of a person's youth". Juvenile delinquency first recorded 1816.[1]

 

B. OTHER INTERPRETATIONS

Child: A Young person from birth to the age of full physical development; a boy or a girl.

Juvenile – A young person who is still not an adult.[2]

Juvenile Delinquent:

A person who is under age (usually below 18), who is found to have committed a crime in states which have declared by law that a minor lacks responsibility and thus may not be sentenced as an adult. However, the legislatures of several states have reduced the age of criminal responsibility for serious crimes or for repeat offenders to as low as 14.

Foster child
A child without parental support and protection, placed with a person or family to be cared for, usually by local welfare services or by court order. The foster parent(s) do not have custody, nor is there an adoption, but they are expected to treat the foster child as they would their own in regard to food, housing, clothing and education. The local government pays most foster parents.[3]

A child (plural: children) is a young human. Depending on context it may mean someone who is not yet an adult, or someone who has not yet reached puberty (someone who is prepubescent).When one refers to a person's children, one means their offspring – i.e., their sons and daughters, regardless of age.

A juvenile is an individual organism that has not yet reached its adult form, maturity or size; for humans this is called a child.[4]

In law, a person who is not yet a legal adult is known as a minor (known in some places as an juvenile, or, in others, as a infant). For example, in many countries a person under the age of 18 is a minor. Most countries give additional legal protection to minors despite their underage status, and all United Nations member states except the United States and Somalia have ratified the UN Convention on the Rights of the Child, although not all of them have followed it.

C. THE LEGISLATION IN INDIA

S.2 (d) The Juvenile Justice (Care and Protection of Children) Act, 2000

"Child in need of care and protection" means a child-

(i)                 Who is found without any home or settled place or abode and-without any ostensible means of subsistence,

(ii)               Who resides with a person (whether a guardian of the child or not) and such person

(iii)             Has threatened to kill or injure the child and there is a reasonable likelihood of the threat being carried out, or

(iv)             Has killed, abused or neglected some other child or children and there is a reasonable likelihood of the child in question being killed, abused or neglected by that person,

(v)               Who is mentally or physically challenged or ill children or children suffering from terminal diseases or incurable diseases having no one to support or look after,

(vi)             Who has a parent or guardian and such parent or guardian is unfit or incapacitated to exercise control over the child,

(vii)           Who does not have parent and no one is willing to take care of or whose parents have abandoned him or who is missing and run away child and whose parents cannot be found after reasonable injury,

(viii)         Who is being or is likely to be grossly abused, tortured or exploited for the purpose of sexual abuse or illegal acts,

(ix)             Who is found vulnerable and is likely to be inducted into drug abuse or trafficking,

(x)               Who is being or is likely to be abused for unconscionable gains,

(xi)             Who is victim of any armed conflict, civil commotion or natural calamity;

S.2(k) and S.2(l) The Juvenile Justice (Care and Protection of Children) Act, 2000

S.2 (k) “Juvenile” or “child” means a person who has not completed eighteenth year of age.

S.2 (l) "Juvenile in conflict with law" means a juvenile who is alleged to have committed an offence.

D. COMPARED TO Juvenile Justice Act, 1986

Child (no specific definition of child given) a child was incorporated with a juvenile.

S.2 (h) “Juvenile” means a boy who has not attained the age of 16 and a girl who has not attained the age of 18.

E. DIFFERENCE

Every legal system recognizes that children and adolescents are different from adults, and should not be held accountable for their violations of the criminal law in the same fashion as adults. There are, however, very substantial differences in how different countries give effect to this basic principle, and indeed in how they legally define such fundamental concepts as “child,” “youth” and “adult.”

An important and revealing measure of a society is its responses to those who are at its margins. Adolescents in conflict with the law are often seen as marginal. They are often excluded from the economic, social, cultural and racial mainstreams of their societies, in addition to being alienated by virtue of their developmental stage. Understanding how a society responds to young persons who violate its criminal law provides important insights to that society as a whole.

Countries differ significantly in how they define children and youth. Different terms are often applied to individuals in the same age category. An obvious example of this is that in Canada and South Australia adolescents in conflict with the law are referred to as “young persons” or “youths,” while the term “juveniles” is used in Queensland and in the United States, and “children” in Scotland.[5]

Conversely, the same terms may be used to refer to different things in different countries. An example of this is the age range of people dealt with by the juvenile justice systems of various countries. Illustratively, persons aged 7- 15 inclusive in Scotland are dealt with by the juvenile justice system as “children,” while in South Australia, the juvenile justice system deals with “children” aged up to 18. In Canada, the same term, “child,” is used to refer exclusively to those under the age of 12, who are immune from criminal prosecution.

In India the difference between a child and a juvenile has only been introduced now after the General Assembly of the UN adopted the convention on the right of a child on 20^th Nov, 1989, thus the standards for maintaining the best interests of a child have to be upgraded. There was no definition on child earlier and now an elaborate scheme has been provide. The sentencing of juveniles, in particular the prohibition of capital punishment and life imprisonment under Art. 37 (a)[6], has been also integrated with the concept of the “welfare model”

F. NEED FOR DISTINGUISHING “child “ FROM “juvenile”

Child abandonment or the practice of abandoning one's offspring outside of legal adoption is a long standing social ill. Causes include many social, cultural and political reasons as well as mental illness.Poverty is a root cause of child abandonment, persons in cultures with poor social welfare systems who are not financially capable of taking care of the child are more likely to abandon it. The political climate, such as difficulty in adoption proceedings, also lends itself to child abandonment

countries with laws limiting children per family, have high rates of selective child abandonment. Female children are not viewed as providing for a family's economic wealth, often quite the opposite in cultures that practice dowry, therefore they are illegally abandoned in hopes of producing a boy.

Societies with strong social structures and liberal adoption laws have lower rates of child abandonment.The abandoned child is called a foundling.

A street child is a child who lives on the street – in particular, one that is not taken care of by parents or other adults – and who also sleeps on the street because he or she does not have a home. The number of homeless people worldwide has grown steadily in recent years. In some Third World nations such as Brazil, India, and South Africa, homelessness is rampant, with millions of children living and working on the streets.

G. CONCLUSION

A “welfare model” of juvenile justice, with the main focus of intervention, at least in theory, being the promotion of the welfare of the child. Since the promotion of the child’s welfare was the objective, the focus of intervention was to help “wayward youth” rather than to punish them for the offence. This welfare orientation was used to justify minimizing concerns about due process of law. There was also a broad definition of “delinquency,” to permit speedy intervention to “save” the child from a life of crime. In a welfare model, the focus of juvenile justice is on the offender rather than the offence, and on the welfare of the youth rather than punishment or accountability for an offence. Characteristics of a welfare model are informality and lack of due process, as well as indeterminate sentencing since a youth should be kept in custody as long as necessary to effect rehabilitation. Another characteristic of juvenile justice systems operating on a welfare model is the high degree of discretion given to judges, probation officers and juvenile correctional officials, so that they can do what they consider best for the individual juvenile they are dealing with.

With the introduction of the new definitions and superseding models and theoretical examples from other advanced nations, the defined “child” versus a “juvenile” can be established.

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[1] http://www.etymonline.com/j2etym.htm (last visited on 5.09.04)

[2] A.S. Hornby,Oxford Advanced Learner’s Dictionary, (Thomson Press, New Delhi,2002), p. 646

[3] Taken from www.manupatra.com (last visited on 6.09.04)

[4] http://en.wikipedia.org/wiki/Juvenile (last visited on 5.09.04)

[5] http://en.wikipedia.org/wiki/Juvenile (Last visited on 09.09.04)

[6] VIENNA DECLARATION AND PROGRAMME OF ACTION(Part 1, para.21), adopted by the World Conference on Human Rights, Vienna, 25 June 1993, taken from http://encyclopedia.thefreedictionary.com/UNICEF (last visited on 08.04.09)