At what age can a child tell right from wrong?
There are those who would have it that raising the age of criminal responsibility from 10 to 16 is "going soft" on people who deserve to be punished for their anti-social behaviour.
This position also assumes punishment is an effective way to end unacceptable behaviour. In fact, the opposite is true. The younger a child is introduced to the criminal justice system, the more likely they are to become a repeat offender and to be incarcerated as an adult.
Children under the age of 10 cannot be charged with a criminal offence. If a three year old boy picks up a gun from a bedside table and shoots his mother dead, he has not committed murder. If he is nine years old he has not committed murder. If he does it the day he turns 10 he is likely to be charged with murder, or at the least manslaughter.
Who decided that a child is eligible to become a convicted criminal on their 10th birthday? Not that long ago it was their eight birthday while traditional European lore stated a child reached "the age of reason" on their seventh birthday.
Scientific knowledge about the human brain and its function has exploded in the last 20 years. We understand that children are all different and that the age at which they can distinguish between "naughty" and "seriously wrong" varies widely.
A bright 10-year-old can tell you that naughty means arguing with your parents but seriously wrong means robbing a house. A child with a developmental disability may not have the language skills or the reasoning skills to be able to do so.
There are many different types and levels of developmental disabilities. "Mental retardation" is now known as "intellectual disability" and a large proportion of the children charged with crimes in Australia meet the criteria for ID.
AD/HD is a disorder of the highest function of the brain, impairing the ability to control one's emotions and impulses. A child who has AD/HD may not be able to control their impulse to steal from a shop or punch another child until they are 12 or 14 or even later, depending on the severity of the impairment.
Thanks to a groundbreaking study in Western Australia we now know that 65 per cent of the children incarcerated in that state are suffering from severe impairment of at least three important functions of the brain. We also know that at least half of these impaired children have suffered widespread injury to their brains due to prenatal exposure to alcohol.
It was only in 2009 that Australian doctors agreed to tell pregnant women that no alcohol consumption is safe in pregnancy and so generations of women have exposed their unborn child to the risk of brain damage. We know that trauma also causes brain dysfunction and symptoms of AD/HD.
A child with a brain injury is most likely to struggle with school work and many "play up" to hide their embarrassment and shame in the classroom. They are frequently suspended from school and get into trouble out on the streets. The poorest and most disadvantaged children (often Aboriginal) are the most likely to be arrested and charged with crimes as their more fortunate peers are not out on the streets - they have been taken to paediatricians and psychologists for a diagnosis of disability and NDIS support.
Children convicted of crimes in Australia are the disabled, the brain injured, the poor, the traumatised, and the marginalised. Is it justice to punish these vulnerable young people and set them on a pathway to prison? Or would it protect the community better to offer them support and keep them in school, preventing further offending? The latter option has worked in other countries and it can work in Australia.
Dr Meg Perkins is a psychologist, researcher and writer.