Juvenile Justice in Europe

Past, Present and Future

Barry Goldson

• Publisher: Routledge
• Year: 2018
• Topic: Law
• eBook ISBN:
  9781351761215
• Subtopic: Social History
• Index: Law

At a time when Europe is witnessing major cultural, social, economic and political challenges and transformations, this book brings together leading researchers and experts to consider a range of pressing questions relating to the historical origins, contemporary manifestations and future prospects for juvenile justice. Questions considered include:

• How has the history of juvenile justice evolved across Europe and how might the past help us to understand the present and signal the future?
• What do we know about contemporary juvenile crime trends in Europe and how are nation states responding?
• Is punitivity and intolerance eclipsing child welfare and pedagogical imperatives, or is 'child-friendly justice' holding firm?
• How might we best understand both the convergent and the divergent patterning of juvenile justice in a changing and reformulating Europe?
• How is juvenile justice experienced by identifiable constituencies of children and young people both in communities and in institutions?
• What impacts are sweeping austerity measures, together with increasing mobilities and migrations, imposing?
• How can comparative juvenile justice be conceptualised and interpreted?
• What might the future hold for juvenile justice in Europe at a time of profound uncertainty and flux?

This book is essential reading for students, tutors and researchers in the fields of criminology, history, law, social policy and sociology, particularly those engaged with childhood and youth studies, human rights, comparative juvenile/youth justice, youth crime and delinquency and criminal justice policy in Europe.

Part I

Past

1

Under pressure? The foundations of children’s courts in Europe

Els Dumortier

‘If we can reveal that practices and beliefs have a history, then maybe we can destabilize their apparent immutability’

Bosworth, 2001: 439

Introduction: contemporary juvenile justice debates in Europe and the importance of historical perspectives

Since the 1990s many European countries have introduced reforms to their juvenile justice legislation (Junger-Tas and Decker, 2006; Muncie and Goldson, 2006 Dünkel et al., 2010; Decker and Marteache, 2017). These changes imply, to a certain extent, a departure from ‘classical’ juvenile justice principles that were established at the end of the nineteenth and the beginning of the twentieth centuries. Such reforms are often presented as repressive and are linked to a ‘toughening up’ of attitudes and demands for more robust (punitive) responses to juvenile crime and youth delinquency (Goldson, 2002; Hendrick, 2006; Muncie, 2008; Bailleau and Cartuyvels, 2010; Dumortier et al., 2012). To counter such punitive tendencies, the increased need for (the real implementation of) international children’s rights standards has been advanced by several scholars (Muncie, 2008; Snacken and Dumortier, 2012; Goldson and Muncie, 2015) and, according to some, by taking account of such standards the excesses of punitiveness have been resisted in identifiable European juvenile justice systems (Dünkel, 2016). Central to such rights approaches stands the concept of broad social justice for all children, the need to divert as many children and young people as possible from juvenile justice systems and, at the extremes, to limit any deprivation of liberty to an intervention of last resort and for the shortest time possible (United Nations Committee on the Rights of the Child, 2007; Goldson and Muncie, 2015).

However, by focusing solely on contemporary reforms and debates, their historical antecedents, problems and ‘solutions’ are lost in the mists of time. In other words, by not taking history into account, contemporary debates are at risk of continuously recycling common beliefs pertaining to juvenile justice rather than producing knowledge. It is to uncover contemporary myths and beliefs about juvenile justice that a longer-term, historical European perspective is needed.

Although it is inherently hazardous to attempt to outline general trends, reforms and evolutions across national frontiers – because every jurisdiction/country is confronted with its own particular conditions and comparative analysis is necessarily complex (Nelken, 2009) – a wider ‘European perspective’ can help us to deepen our understanding of the foundation of Children’s Courts in different European countries. Of course, Europe is a large entity comprising 28 member states in the European Union and 47 member states in the Council of Europe. It is not, therefore, possible in a single chapter to provide a comprehensive historical account, and in this contribution the emphasis is on the origins of the children’s court in Belgium. Belgium is a particularly important jurisdiction given that within international-comparative research it is often referred to as a pioneer in European juvenile justice and, to this day, it is still commonly presented as being representative of the ‘welfare model’ (Junger-Tas and Decker, 2006; Bateman, 2012; Tonry and Chambers, 2012, 877; Dumortier, Christiaens and Nuytiens, 2017).

Notwithstanding its significance in Europe and beyond, however, it is also clear that the course and form that juvenile justice reform took in Belgium is not completely isolated. On the contrary, several countries in Europe and beyond witnessed the rise of specialised Children’s Courts at the end of the nineteenth and the beginning of the twentieth centuries (Trépanier and Rousseaux, 2018). Even though national differences were clearly present, therefore – not least due to legal and political differences between common and civil law countries – certain core principles appear to be shared in the historical conceptualisation of the ‘new’ Children’s Courts, including: (i) an ambiguous mission of ‘saving’ children while also holding them to account, (ii) jurisdictional specificity (an exclusive focus on children and the exclusion of adults), (iii) the composition of the courts with specialised judges and ‘intimate’ (child-centred) processes, procedures and settings, and (iv) the inclusion of new collaborators working with the judge including probation officers, private (often religious) institutions and personnel and ‘scientific experts’ (including doctors and psychiatrists).

To understand the common elements that characterise much juvenile justice reform, we will start with a first section on the rise of the children’s court in Europe in a context of major social, economic and political transformations. Our second section will then focus more sharply on the Belgian model through a diversity of sources including parliamentary sources (particularly pertaining to the Child Protection Act 1912) and judicial statistics and archives (especially relating to the Belgian Child Protection system from 1912–1965). In our conclusion and discussion we will, on the basis of this historical mapping, critically contextualise some contemporary debates that centre juvenile courts, juvenile justice and children’s rights in Europe.

The emergence and development of Children’s Courts in Europe: social, economic and political transformations

To comprehend the emergence and development of Children’s Courts we need to take account of the challenges European societies were facing at the end of the nineteenth and beginning of the twentieth centuries. In this first section, therefore, we consider two important transformations that occurred at that time that, in turn, gave rise to two major questions (one social/structural and the other individual/moral).

The tensions between social justice and social defence

At the end of the nineteenth–beginning of the twentieth century, both Europe and the USA were confronted with the ‘social question’. Ongoing processes of industrialisation and urbanisation during the nineteenth century, together with ultra-liberal politics and the absence of centralised social welfare systems, created an oppressed and highly impoverished working class who lived in miserable conditions (‘le prolétariat’). As a consequence, many European countries witnessed the rise of ‘socialist’, ‘communist’ or ‘labour’ (political) movements that, together with the emerging and growing trade unions, aimed to defend the interests of the working classes; most notably, the struggle for the (universal) right to vote (Chlepner, 1972; Berger, 2006). Furthermore, sections of traditionally more conservative political parties and movements, together with the Church, also became inspired by principles of ‘social justice’. In the Anglo-Saxon world, for example, a new theology of Social Christianity developed throughout the nineteenth and into the twentieth centuries (Phillips, 1996) and, in the Catholic belt of Europe, the philosophical revival of Thomas Aquinas at the end of nineteenth century, also helped to legitimise the principles of ‘social justice’ (Kenny, 1980; van Kersbergen, 1995).

At the end of the nineteenth and the beginning of the twentieth centuries, however, the implementation of ‘social justice’ was still at an embryonic stage. With regard to children and young people, key manifestations included the abolition of child labour and the obligatory education of children in many European countries (Rahikaenen, 2004). Although such steps can be taken to represent progress, they made minimal impact upon dominant modes of capitalist social ordering. The socialist and communist ideals of working towards a classless society and transforming the relations of production, distribution and exchange into ‘common’ entities were not shared by these early variants of ‘social justice’ (Chlepner, 1972). On the contrary, such ‘social justice’ was contingent and conditional and it was the bourgeoisie who maintained close control of the philanthropic ‘patronage’ for the poor by deciding who might be helped (the deserving poor) and who might not (the undeserving poor). Indeed, such ostensible expressions of ‘social justice’ (understood principally by reference to moral discourses) dovetailed neatly into the overarching imperative of ‘social defence’ or social control, a much ‘tougher’ response to the ‘social question’ and one that was principally driven by the maintenance of the status quo.

Indeed, as a reaction to the ‘social question’ that was framed by class struggle (‘la lutte des classes’), ‘la bourgeoisie’ undertook pseudo-scientific investigations of the working classes’ living conditions (‘les enquêtes sociales’) within which the ‘labouring classes’ (or ‘perishing classes’) and the ‘dangerous classes’ were bracketed as ‘savages’ to be feared, controlled and, if need be, repressed (Christiaens, 1999a). Further, backed up by the ‘scientific discoveries’ of early criminologists such as Lombroso (1895, 1899), Lacassagne (1913) and Ferri (1905), it was assumed that criminal acts were not the product of free choice and rational calculation (classical school) but that the root causes of crime were to be found in factors outside the control of the offender (biological or sociological positivist schools). As a consequence, the ‘bankruptcy’ of classical criminal law was announced by several leading scholars of the time (Cantor, 1936).

Instead of the metaphysical, philosophical and ‘unscientific’ concepts of ‘free will’ and ‘guilt’ drawn from the Era of Enlightenment, advocates of ‘social defence’ – such as the Belgian Prins (1899, 1910), the Dutchman Van Hamel (1895) and the Italian Ferri (1905) – claimed that notions of ‘determinism’ and ‘dangerousness’ should guide the state’s interventions and that more fluid measures of ‘social defence’ were needed to complement, if not replace, classical punishment, particularly in the cases of children, young people and the mentally ill. Such (indeterminate) measures were characterised by their aims of preventing crime, of transforming adaptable and compliant ‘criminals’ into law-abiding citizens or, in the case of their ‘incorrigible’ counterparts, of neutralising them. According to Cantor (1935: 347), continental European countries and scholars were increasingly occupied with the ‘theorisation’ and elaboration of new codes of social defence (in their attempts to reconcile positivism with classicism), whereas the Anglo-Saxon world, ‘in the absence of a clear penal theory’, was increasingly experimenting and developing – ‘from the bottom up’ – new approaches in daily practice. What is absolutely clear for continental European countries is that the second half of the nineteenth century was characterised by an intensification of experiments and new measures to deal with delinquent children and young people, beggars and vagabonds (Dupont-Bouchat and Pierre, 2001).

Children of the ‘lower depths’

In attempts to bolster ‘social defences’ and better protect society against criminality, the children of the ‘lower depths’ (‘les bas fonds’) received special attention. On one hand, the traditions of biological positivism presented children as more ‘savage’ than adults, less psychologically developed, more prone to genetic determinism and, particularly during puberty and ‘adolescence’, more susceptible to hormonal changes and consequent instability (Lombroso, 1899). On the other hand, sociological positivists, such as Ferri (1905), Lacassagne (1913) and Tarde (1890), claimed that children, and specifically working-class children, faced particular risks and were routinely exposed to bad examples amidst their miserable living conditions. Tarde (1890), for example, argued that children learn by way of imitation and growing up in neighbourhoods and families in which ‘immoral practices’ abounded (such as alcoholism, prostitution, violence, gambling, laziness) imposed negative effects. Equally, Adolphe Prins (1910) approached working-class children as both unfortunate victims of their own genetic inheritance, parental neglect and/or poor living conditions, and as prospective dangerous criminals. Accordingly, although children of ‘les bas fonds’ might be excused punishment as guilty criminals (because they are unfortunate victims with no free will) they definitely had to be prevented from following a deterministic path towards adult criminality (because that would render them dangerous). In other words, working-class children were often conceptualised as miserable (‘misérable’) and ‘dangerous’ at one and the same time.

From the perspective of securing ‘social defence’ and preventing (adult) crime, therefore, ‘lower class’ children emerged as both a problem and, simultaneously, a key to the solution. If they could be ‘corrected’ in good time their path towards adult crime might be averted. This too comprised the juncture where ‘social justice’ and ‘social defence’ converged. Developments such as compulsory schooling and a broad public-health/hygiene policy (including nutrition, physical education of children, preventing and treating venereal diseases that were widespread) overlapped and intersected with initiatives to address juvenile delinquency by way of more preventive and early intervention approaches engineered, not only by the Children’s Courts, but also by a growing body of probation officers, foster carers and/or (private) institutions. Meanwhile, for more serious juvenile offenders, re-education took place in closed (often state-run) institutions.

Another important measure of social defence vis-à-vis working-class children (and their families) – highly promoted during the second half of the nineteenth century – was the (further) development of parens patriae. This doctrine, originally developed in common law countries (Bac, 1998), authorised local authorities to take responsibility for neglected, maltreated or abused children and it promoted and influenced the European-continental and civil law variant of ‘la déchéance paternelle’ (or ‘ontzetting/ontheffing uit de ouderlijke macht’). By the beginning of the twentieth century many European countries introduced the possibility of withdrawing ‘unfortunate’ children from their ‘unworthy parents’ (‘les parents indignes’) and placing them in institutions or alternative families with foster carers. The principle of the ‘best interest of the child’ became, also in civil law, a legally accepted concept and the gateway for state intervention in what was previously perceived as an ‘untouchable’ domain in civil law countries until long into the nineteenth century: the ‘sacred’ family with the father as pater familias (Dupont-Bouchat, 1983; Christiaens, 1994; Van Praet, 2017). Moreover, the principle of equity, instead of due process, lay at the basis o...

Table of contents

• Cover
• Endorsement
• Half Title
• Title Page
• Copyright Page
• Dedication
• Contents
• List of Contributors
• Acknowledgements
• Preface
• Part I Past
• Part II Present
• Part III Future
• Index