Children’s Rights and the United Nations Committee on the Rights of the Child: Relevancy of Neuroscience in UK Youth Justice

The United Nations Convention on the Rights of the Child (UNCRC) rep-
resents the most comprehensive, legally binding statement of children’s rights
in international human rights law. The UN Convention on the Rights of the
Child, signed by the UN General Assembly in 1989 and ratified by the UK
government in 1991, recognises that young people under 18 years may need
special protection because of their age or emotional development. Simul-
taneously, it promotes the idea of children as independent bearers of rights
invested with agency integrity and decision-making capacities.1 Accordingly, it
enshrines important rights for children, such as the right to have their best inter-
ests as primary considerations in all court actions involving them (Article 3),
the right of young people accused of engaging in criminal behaviour to be
treated in a manner consistent with the promotion of the ‘child’s sense of dig-
nity and worth . . . and which takes into account the child’s age’ (Article 40),
the need for detention to be used only as a measure of last resort (Article
37), and the right to have their voice heard and taken into account in all
decision-making (Article 12). More recently, the UN Committee on the
Rights of the Child, in General Comment No. 24 (2019) on Children’s Rights
in the Child Justice System, which replaced General Comment No.10 (2007),
previously recommended 12 years of age as the minimum acceptable age of
criminal responsibility,2 and emphasised that in light of scientific findings, state
parties were encouraged to increase their minimum age of criminal responsi-
bility (MACR) to at least 14 years of age and commended those states that had
a higher minimum age for instance, 15 or 16 years of age.

In General Comment 24, the UNCRC specifically referenced the latest
neuroscientific evidence on adolescent brain development, noting that state
parties should consider any scientific evidence indicating the teenage brain
is developmentally immature and affects a child’s decision-making capacity.
There is growing scientific evidence suggesting that a child’s developmental
maturity and mental capacity for decision-making does not reach full matura-
tion until around 25 years of age, due to the slow development of the pre-
frontal cortex.4 Children, therefore, differ significantly from adults regarding
their thinking, socialising, behaviour, and physical development. Due to their
ongoing brain maturation, they may not fully comprehend the consequences
of their actions, resist impulses, or demonstrate the same level of restraint as
adults. The UNCRC underscores the importance of considering these devel-
opmental disparities in jurisdictions to prevent children from being unjustly
exposed to the criminal justice system and held criminally accountable for their
actions when they commit a crime. Nevertheless, certain state parties, includ-
ing the United Kingdom, continue to maintain ‘unacceptably low’5 MACRs
and ignore the UNCRC’s repeated recommendation for an increase in the
minimum age of criminal responsibility in General Comments 24 and 20 on the
implementation of the rights of the child during adolescence.
6
This chapter will critically examine the UNCRC’s latest recommendations
in General Comment 24 and use the different jurisdictions throughout the
United Kingdom as a case study to examine the extent to which General Com-
ment 24’s remarks about implementing current neuroscientific evidence into
state policy reform have been engaged with. We will also examine some inter-
esting developments from the U.S., which point to examples of how General
Comment 24 can be embedded into youth justice practice. The chapter will
begin with an overview of the latest scientific evidence and observations from
the UNCRC in General Comment 24. After that, the chapter will consider
how nations across the UK are using the latest neuroscientific evidence on
adolescent brain development to address the UNCRC’s General Comment 24
through the implementation of MACRs, child-first principles, trial procedures,
and the defence of doli incapax. Recent developments in policing youth crime
in the U.S. will then be examined as an exemplar of how General Comment 24
can be put into action in practice.