Protecting the Best Interests of the Child: A Comparative Analysis of the Youth Justice Systems in Ireland, England and Scotland
International Journal of Children’s Rights 18, 2, pp. 217-231
Posted: 16 Jan 2015
Date Written: January 15, 2015
Protecting the welfare of the child has traditionally been at the heart of youth justice systems. This article will provide a comparative analysis of three jurisdictions – the Republic of Ireland, England and Scotland – and examine the extent to which welfare considerations are still an important part of responding to youth offending. The welfare, or best interests, principle has received intense critical scrutiny, however typically it is discussed in terms of balancing the welfare of the child with the rights of other family members in family law disputes (for example see Choudhury and Fenwick, 2005; Eekelaar, 2002; Reece, 1996). This article will consider the concept of the welfare of child in terms of how young people are treated in youth offending cases. This timely analysis is pertinent in light of the Irish government’s proposal to amend the Irish Constitution in order to acknowledge the natural and imprescriptible rights of all children. The proposed amendment enshrines the need for Irish courts to secure the best interests of the child in all court proceedings except criminal proceedings involving young people. Troubled young people who engage in offending behaviour are specifically excluded from this constitutional protection of young people’s best interests. The English youth justice system has also adopted an approach where welfare considerations of young offenders have been relegated to a secondary concern. By marginalising the best interests of young offenders, both England and Ireland are ignoring their obligations under international law to protect the best interests of all young people in all court proceedings and also ignoring the harsh reality of the lives of young people who offend.
Suggested Citation: Suggested Citation