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Theorising Children's Rights in Youth Justice: The Significance of Autonomy and Foundational Rights

Lookup NU author(s): Professor Kathryn HollingsworthORCiD

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Abstract

This paper develops a theoretical approach to children's rights in youth justice that is located within a wider rights-based theory of criminal justice; one that emphasises the centrality of citizens’ autonomy. Understanding children’s rights in the youth justice system, and what is special about those rights, therefore requires an understanding of children’s autonomy and in particular how it differs from that of adults. One aspect of the difference is that within the polity children are legally and politically constructed as not fully autonomous and as not having full rights status. It is argued that a rights-based system of criminal justice system must take account of the difference in the legal and political status of children and adults by ensuring that the use of state punishment does not permanently and irreparably harm the child’s capacity for full autonomy. This can be achieved by identifying and having special regard to a category of children’s rights that are deemed ‘foundational’ to full autonomy. The concept of foundational rights should be used to address some key issues in youth justice: the setting of the minimum age of criminal responsibility, differential sentencing for children and adults; and a rights-based system of resettlement.

Publication metadata

Author(s): Hollingsworth K

Publication type: Article

Publication status: Published

Journal: Modern Law Review

Year: 2013

Volume: 76

Issue: 6

Pages: 1046-1069

Print publication date: 01/11/2013

ISSN (print): 0026-7961

ISSN (electronic): 1468-2230

Publisher: Wiley-Blackwell

URL: http://dx.doi.org/10.1111/1468-2230.12047

DOI: 10.1111/1468-2230.12047

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