Childhood, Rights and Justice in Northern Ireland

Building on primary research and previous publications (Haydon, 2012; Haydon, 2014; Haydon and Scraton, 2008; McAlister, Scraton and Haydon, 2009; Scraton and Haydon, 2002), this chapter will provide a critical analysis of children’s rights and youth justice in Northern Ireland. More broadly, it will consider recent research concerning the criminalisation of children and young people in the United Kingdom and profound concerns regarding the policing and regulation of children raised in successive concluding observations about the UK Government’s implementation of the UN Convention on the Rights of the Child (UN Committee on the Rights of the Child, 1995, 2002, 2008). From this generic context, the chapter will map the ‘particular circumstances’ of Northern Ireland - a discrete legal jurisdiction to which powers for justice and policing were devolved only in 2010. Emerging from four decades of conflict and progressing through an uneasy ‘peace’, rights-based institutions and enabling legislation have, in principle, promoted and protected human rights. Yet children and young people living in communities marginalised by poverty and the legacy of conflict continue to experience inconsistent formal regulation by the police and the criminal justice system, while enduring often brutal informal regulation by paramilitaries. The chapter will explore evident tensions between the dynamics of criminalisation and promotion/ protection of children’s rights in a society transitioning from conflict. Further, it will analyse the challenges to securing children’s rights principles and provisions within a hostile political and ideological context, arguing for a critical rights-based agenda that promotes social justice through rights compliance together with policies and practices that address the structural inequalities faced by children and young people.

Experiencing Youth Justice and Penality

Much of the recent literature on youth justice has focused on administrative aspects of the system and the socio-political contexts that have led to the ‘production’ of the youthful offender as a subject and locus of intervention. This has largely been driven by the extent to which youth justice has been crafted as a distinct penal sphere, evident in its unyoking from universal children’s services (Muncie and Goldson, 2013) and the establishment of separate agencies to administer and govern this ‘system’ (Souhami, 2014). Driven by policy hyperactivity and a plethora of legislation expanding the reach of the system, for much of the 1990s and 2000s increasing numbers of young people were brought under its gaze.

Particular attention has been paid to the impact of neo-liberal governance on the discourses, rationales and philosophies underpinning contemporary youth justice policy and practice. Writing specifically in the English and Welsh context, several authors have identified that the resulting ‘system’ embodies multiple, contradictory and competing discourses (Muncie, 2006; Fergusson, 2007; Gray, 2013). Within this ‘melting pot’ Fergusson (2007) notes the disjuncture between policy rhetoric, implementation and lived experience and Phoenix (2015) argues that systems-based analyses, much in favour amongst academics, foreclose a wider consideration of questions of what ‘justice’ actually means.

Recent attention towards the perspectives of practitioners working in this sphere has pointed to greater nuances than broader penal narratives suggest (see: Field, 2007; Briggs, 2013; Gray, 2013; Kelly and Armitage, 2015). Yet similar attention has not been given to experiences of youth justice (for an exception see – Phoenix and Kelly, 2013). However, it is precisely young people’s experiences, which would add significantly to current knowledge and potentially bridge the gap between discussions about penal philosophies, how youth justice policies are framed, how they are enacted and how they are experienced.

This chapter provides an overview of recent developments in the field of youth justice and penality in the United Kingdom. The chapter argues that a theoretical focus on macro-level trends (Hannah-Moffat and Lynch, 2012), alongside a narrowly defined research agenda, have largely excluded young people’s experiences of justice and punishment from contemporary analysis. Drawing on young people experiences of different aspects of youth justice in Northern Ireland and beyond, the chapter illuminates what a close understanding of lived experience can add to knowledge. In particular it demonstrates that the effects of interventions can be different to their aims and intentions; and that re-instating the youth experience can add support to calls for greater attention to wider issues of social justice.

‘Transforming justice’: challenges for restorative justice in an era of punishment-based corrections

Scholars of restorative justice have long debated its theoretical relationship with formal criminal justice. This analysis critically examines the range of sociostructural conditions in contemporary society that have halted the spread of restorative policies in practice and prevented them from realizing their transformative potential as an alternative system of justice. These factors are attributed largely to a punitive penal culture that is characterized by policy-making based on penal populism, the governance of risk and a managerialist criminal justice agenda; and the widespread co-optation of restorative programs by the state. This broad argument is explored in the context of two particular case studies – recent developments in youth justice and in sexual offending respectively in England and Wales and elsewhere. This examination ultimately highlights challenges for restorative justice in the current risk-driven penal climate and advocates a need to re-evaluate its relationship with formal state justice.

Young people, crime and justice in Northern Ireland

Many children and young people in conflict with the law in Northern Ireland have experienced living in poverty, truancy or exclusion from school, limited educational attainment, neglect or abuse within their families, placement in alternative care, drug or alcohol misuse, physical and mental ill-health. However, their lives are also affected by the legacy and particular circumstances of a society in transition from conflict. In addition to historical under-investment in services for children and their families, this includes discriminatory policing alongside informal regulation by ‘paramilitaries’ or members of ‘the community’ and community-based restorative justice schemes as an alternative way of dealing with low-level crime and ‘anti-social’ behaviour.

Following a Criminal Justice Review, the 2002 Justice (Northern Ireland) Act affirmed that the principal aim of the youth justice system is to protect the public by preventing offending by children’. Youth justice initiatives therefore encompass a range of responses: early intervention to prevent offending and the application of civil Anti-Social Behaviour Orders, diversionary measures (including community-based restorative justice schemes), non-custodial disposals for those found guilty of offences, and custodial sentences. While ‘policy transfer’ prevailed during periods of ‘direct rule’ from Westminster, the punitive responses to ‘sub-criminal’ and ‘anti-social’ behaviour introduced by the 1998 Crime and Disorder Act in England and Wales were resisted or not implemented in the same way in Northern Ireland.

This Chapter will critically analyse the debates informing recent developments, noting key issues raised by the 2011 review of youth justice initiated as a priority following the devolution of justice and policing to the Northern Ireland Assembly. It will focus on promotion and protection of the rights of children and young people in conflict with the law.

Experiences of youth justice: Youth justice discourses and their multiple effects

Interventions within youth justice systems draw on a range of rationales and philosophies. Traditionally demarcated by a welfare/justice binary, the complex array of contemporary rationales meld different philosophies and practices, suggesting a mutability that gives this sphere a continued (re)productive and felt effect. While it may be increasingly difficult to ascertain which of these discourses is dominant in different jurisdictions in the UK, particular models of justice are perceived to be more prominent (Muncie, 2006). Traditionally it is assumed that Northern Ireland prioritises restoration, Wales prioritises rights, England priorities risk and Scotland welfare (McVie, 2011; Muncie, 2008, 2011). However, how these discourses are enacted in practice, how multiple and competing rationales circulate within them and most fundamentally how they are experienced by young people is less clear. This paper, based on research with young people who have experienced the full range of interventions in the youth justice system in Northern Ireland examines their narratives of ‘justice’. It considers how different discourses might influence the same intervention and how the deployment of multiple rationalities gives the experience of ‘justice’ its effect.

Experiencing Youth Justice: Process, Meaning and Legitimacy

Reform of the youth justice system, including the wide incorporation of restorative justice approaches, was a central component of the Criminal Justice Review (2000). Following the devolution of policing and justice powers to the Assembly, the Youth Justice Review (2011) made a series of recommendations for further reforms. These included proposals for the introduction of a statutory time limit in youth cases to tackle avoidable delay. Strengthening legitimacy and advancing rights-based approaches are key themes underpinning the recommendations of Youth Justice Review (2011). Young people’s views of justice within the system are critical to our understanding of how such aims can be achieved. This presentation is based on findings from a longitudinal qualitative study exploring young people’s experiences of transitions into and from custody in the Juvenile Justice Centre. Using a life-history approach young people’s experiences of justice at various stages of the criminal justice process and in the wider context of their lives is explored. Key issues such as social contexts, legitimacy and perceptions of fairness are highlighted and the implications of this for system reform are critically examined.

Punishment, youth justice and cultural contingency: Towards a balanced approach

Reflecting developments in the broader penological realm, accounts have been advanced over the last number of decades about a ‘punitive turn’ in the youth justice systems of Western democracies. Against the background of this work, this project seeks to identify convergent and divergent trends in the youth justice systems of England, the Republic of Ireland and Northern Ireland as well as the rationalities and discourses animating these. The results lend support to research emphasising the continued salience of national, regional and local factors on penal outcomes but also suggest the need to steer an analytical path somewhere between nomothetic (convergent) and idiographic (divergent) accounts.

The Equalization of Effective Communicative Freedom: Democratic Justice in the Constitutional State and Beyond

Jurgen Habermas takes the realization of rights through the democratic self-organization of legal communities to be the normative core of emancipatory politics. In this article I explore the implications of this claim in relation to the requirements of justice. I argue that Habermas's discourse theory of democratic legitimacy presupposes a substantive principle of justice that demands the equalization of effective communicative freedom for all structurally constituted social groups in any constitutional state. This involves the elimination of a range of structural injustices rooted in the complex interrelationships between political, economic and cultural orders. In the final section I sketch briefly the implications of this analysis in the context of ongoing globalization processes. It is suggested that the most effective way to establish a just system of global governance is to equalize effective communicative freedom among nation-states.