Restorative Justice and Children Having Committed Severe Crimes

Motivated by an actual and recent case of school shooting in Finland, this article discusses the intersection of children in severe conflict with the law, minimum age of criminal liability and the opportunities of restorative justice as a means of facilitating the child’s reintegration into society.

On the morning of April the 2nd, a 12-year old boy prepared to go to school in the city of Vantaa, Finland. Only that this day would not going to be like the other days. This morning, he would take a small handgun with him. Inside the classroom he then opened fire, killing a classmate on the spot and critically wounding two others. Only minutes later the shooter was taken into custody by the police on the street not far from the school. A school shooting is not an unknown phenomenon, not even in Finland. What was special about this case, however, was the young age of the shooter. It was clear from the start that he would not face any criminal charges. Yet the feeling amongst the general public immediately after the incident was that something should be done. Precisely what merits some reflection. This text discusses the intersection of children, children’s rights, criminal responsibility and alternative dispute resolution methods, in particular restorative justice.

In a global perspective, many of the very first restorative initiatives in the 1970s included children. The famous initiative in Kitchener, Canada assumed that a restorative diversion would benefit adolescents having committed petty crimes. Among others, restorative justice was expected to support their re-integration to society (McCold, 2006).

As restorative justice now has established itself in many parts of the world, children have been marginalised from the procedures at the expense of adults. All of a sudden, the idea of children and restorative justice sounds progressive, also to many of those working with restorative justice. In the meantime, the legal framework including the international safeguards for children’s rights have developed rapidly. The field has become more complex. That also means its potential is based on more information and evidence now.

A key development in the field of children’s rights is the UN Convention on the Rights of the Child from 1989. The framework plays in at different stages of a child’s life, and in many different settings, obligations extending to social welfare institutions, courts of law, administrative authorities or legislative bodies. For example, the right to freedom of violence is elementary for any child of any age, starting from homes and families, and extending to schools and streets. The convention also confirms, in its first part, the child’s right to health, education, artistic and leisure activity at all times. It is clear that these provisions play a role also when children come into conflict with the law.

Connected to the idea of children’s rights, the question of the minimum age of criminal responsibility comes to the fore in most legislations. While different countries even in Europe still set very different age limits, the general standard is set by the UN Committee on the Rights of the Child. In 2019 it recommended elevating the originally set minimum age of 12 years to at least the age of 14, and preferably to 15 or 16 years. The rationale of the age limits is based on psychological development and even pedagogical considerations. It is believed that children differ from adults with regard to their physical and psychological development, as well as to their emotional and educational needs. That’s why children should be treated differently.

According to Dr Anne Lindboe, Norwegian Ombudsperson for Children, in a talk in 2013 cited by a UN publication, brain research shows that a person’s self-control, planning and abstract thinking only fully develop in late adolescence. When a child experiences chaos, neglect, threats and violence, their potential is stunted and distorted. This all increases the risk of more self-absorbed, impulsive and anti-social behaviour which may increase the likelihood of offending (United Nations Office of the Special Representative of the Secretary-General on Violence against Children, 2016).

The thinking then goes that children cannot be assumed to have a capacity to understand the full scope of their wrongful acts, and child delinquency is considered an expression of problems in the child’s development. Hence children below a certain age are exempt from the legal consequences that adults face. Preventive rather than criminal measures are sought for.

In Finland criminal liability starts at 15 years. For children younger than that the pre-trial investigation may extend to establishing the suspect’s involvement. After that the investigation is automatically closed. A child having committed severe crimes would be handled by social workers and child protection officers, the practical measures being determined case-by-case. Apart from the descriptive question of what is done, it is also worthwhile asking what could be done to address child delinquency of this sort.

While the retributive paradigm seeks to establish blame and guilt, restorative justice comes with another logic. It refuses to punish and instead focuses on resolving the conflict and on restoring the harm done. It focuses on liabilities and obligations and on the future. While restorative justice can in a normal order replace a formal justice process by means of diversion or complement them, the perspective changes when it comes to children already exempt from criminal procedures. In such cases, apart from the perspectives relevant to the victim and to the wider society, the response should be discussed from the perspective of the child’s reintegration back into society and reducing recidivism. The offender could be offered a chance to address and deal with what happened in a safe and meaningful environment.

Restorative justice may take many practical forms, including mediation, circles and conferences. Although restorative justice usually involves bringing together at the minimum the victim, the offender, their custodians and the community to exchange in a dialogical, non-adversarial way, the practical methods can involve different sets of stakeholders. As the focus of restorative justice is twofold, rehabilitating the victims, but also offering the offender a chance to understand the harm done and to acknowledge their liability, some methods see the harm in a wider perspective. For example, community reparative boards, used in the United States, bring together the offender and a group of trained community members. The boards aim at allowing for the offender to develop a sense of ownership of the harm and of the reparations.

At the same time, the potential of restorative justice is particularly well exemplified in serious violence, both what comes to the offenders but also to the victims, and their family members. Restorative justice can have a more profound effect on serious offenders than on those who committed pettier crimes. The stigma associated with the offence and the rage of the community are prevalent, as well as the need for reintegration, and all these need a dealing with. Also Finland has successfully run programmes for the aftermath of serious crimes, mainly with regards to adult offenders. However, the potential of restorative justice is showcased in its ability to be adapted to meet the special needs of each individual party, including the child offender.

It may seem that suggesting restorative justice for children below the age of criminal liability having committed serious crimes makes a schoolbook example of net-widening. A child exempt of criminal procedures would now be subjected to a systemic response after all. But the question needs to be approached from a completely different angle. Restorative justice does not need to be approached as another way of punishing. Restorative justice is something else.

The shift from a retributive to a restorative paradigm presents a gigantic leap of faith. Discarding the age-old determination of punishing the offender and replacing it with a restorative consequence requires a new logic. The offender would not participate in the process in any punitive manner, but with a view of offering them a new way of addressing the past and preparing for the future. The question would not be about how best to punish a child, but how best to re-integrate them back to citizenry.

Restorative justice with children has the potential of addressing some pressing social issues in European societies today. The past couple of years have seen massive changes in many living conditions. The continued economic crisis does not promise a much brighter future. Social exclusion of children and families has accelerated, and the perception is that the world has seen younger children commit more serious crimes. National governments are facing pressure to do something about it, as pleas for criminalisation of children are voiced across Europe. Tighter legislation, and tougher sentences are often seen as the viable remedy.

As something indeed needs to be done, it is useful to stop and think what it is that is aimed at with punishing; why do we punish in the first place? Namely, if it is for example for the reduction of recidivism, it’s good to ask if other means than punishment could be used just the same.

From the perspective of historical evidence, tighter control usually is not able to secure safe societies. International studies for example, from Denmark show that lowering the age of criminal responsibility does not have much of a deterring effect. After a trial period of a lower age limit, Denmark in fact reverted back to the original limit of 15 (Schrøder, 2017).

The criminal justice system seems misplaced to address children in conflict with the law. It could be claimed that the system and societies have already failed, if children engage in criminal activities. The communities would do right in taking back the responsibility of supporting the children. Children in conflict with the law face often multiple and complex challenges in their lives. Also, the responses to these must be cross-sectorial and individualised. Child welfare requires a multi-party approach and cooperation, also in the aftermath of serious crime. That’s why it’s imperative to map the choice of means available and to dare to think out-of-the-box.

Restorative justice has interesting prospects as to children in contact with the law, their families, and societies at large. In the absence of one-single off-the-shelf description of restorative process, it offers a wealth of opportunities in finding appropriate measures. It presents a holistic approach together with different victim support interventions as well as social- and health services involved. This way restorative justice can contribute to cohesive and democratic societies. Herein lies the potential of restorative justice. It has the potential of stepping up and developing into meaningful response with appropriate safeguards and procedural provisions in place. But herein lies also a risk.

Sometimes restorative justice is promoted as a cheap and affordable option to full scale criminal trials. It is dangerous to go this way. Even though serious crime committed by children, or by anyone, raises lively debates and strong opinions, it would be best to remain focused in the aftermath as well as in prevention of it. In particular when it comes to children, the primary question should not be formulated in terms of economic affordability. The prime focus should be in what works and what contributes the best to the child’s potential for re-integrating back to the society. Sometimes this is also the most affordable option.

Heidi Jokinen is a University lecturer in Åbo Akademi university, Finland

She is from Finland, where she is still today based in. She currently teaches theological ethics and philosophy of religion at Åbo Akademi University, so it makes a nice mixture of both teaching and research. She wrote her PhD on victim-offender mediation more than a decade ago now and have had an interest in restorative justice ever since. She is a member of the EFRJ Newsletter Editorial Committee since five years ago.

Contact: heidiheidijokinen@gmail.com

Lindboe, A. (2013). Why a special system for children. Online.

McCold, P. (2006). The recent history of restorative justice: mediation, circles, and conferencing. In: D. Sullivan and L.L. Tifft (eds.) Handbook of restorative justice: a global perspective, chap. 1, pp. 23–51. London: Routledge.

Schrøder, M. (2017). Lowering the minimum age of criminal responsibility has no deterrent effects. Online.

United Nations (1989). Convention on the rights of the child. New York: United Nations.

United Nations Committee on the Rights of the Child (2019). General comment No. 24 (2019) on children’s rights in the child justice system. Geneva: United Nations.

United Nations Office of the Special Representative of the Secretary-General on Violence against Children (2016). Promoting restorative justice for children. New York: United Nations Publications.