Childcare Law and Policy: Risks, Rights, and Justice - Essay Example

 CHILDCARE LAW AND POLICY: ARTICLE REVIEW Hazel Kemshall (2008) in Risks, Rights and Justice: Understanding and Responding to Youth Risk reviews the current social and penal policy responses to risk especially on policies of responsibilization and the effects they have on conditional rights. He also looks at the possible resistance that practitioners may have towards justice policies protecting problematic and risky youth. One important aspect that Kemshall discusses is that risk and the youth have become closely associated that they have become two synonymous terms. In the society today, the youth are seen as a risk or as a group, which poses a risk. This has directly affected young people especially offenders and affected the development and application of social and penal policies. The main concern for the author is the effect that risk or the perception of risk in relation to the youth has posed for the erosion or rights and justice for young people (Kemshall, 2008:21). The youth are considered as an active group capable of doing many things both good and bad. This has particularly put the youth in a platform where they are seen as a risky group especially with issues of crime. Of more importance in this issue has been the attitudes of young people to risk which has attracted much interest from the law and policy making organs. As Kemshall (2008) states, much discourse on the youth in relation to risk has focused on education campaigns to encourage the youth not to engage in risky behaviors. The approach taken has aligned with “the rational actor, the ‘Prudential Human’ who will make rational and normatively correct choices if only the relevant risk information is given and processed correctly (Kemshall, 2008:22). However, such initiatives have failed to explore how such decisions are made over certain periods of time and the decisions that the youth make with respect to risk and the issues that make them take such decisions. From this information, it is clear that there is a gap between policy and practice because policy formulation and implementation does not address the actual problem that they should address. The policies developed fail to address the problems that they should address because of the failure of practitioners to conduct researches and find the actual reasons why the youth engage or take decisions to engage in risky behavior. instead, the policies formulated are meant to address the problems of the youth as imprudent, irrational and vulnerable individuals. Thus, the information provided fails to act wisely on risk information because of acting on assumptions rather than adequate research initiatives. Kemshall (2008) states that the problematization of the youth has brought about criminal justice and social policy responses that promote regulation and control of the youth (Kemshall, 2008:22). As such, social ills in the society are perceived as problems that are caused by the youth. Despite the fact that risk has been considered as something directly linked to the youth and crime, it has become an important issue in response to crime especially in youth crime. The problem that has come about with this is that it has interfered with the formulation of social policy and crime policy because social problems are conceived as crime problems. The problem with this is that crime control strategies have been redirected to deal with intractable social ills instead of criminal activities especially among the youth. The youth justice system in England and Wales has been developed to include organs and processes that are used to prosecute, convict and punish the youth found to have committed criminal activities. The main objective of the youth justice system is to ensure that children and young persons (persons under the age of 18) do not offend. However, the conception of the youth as a risk group has severely affected the effectiveness of the youth justice system in England. Instead of focusing on particular individuals in the youth group or among the young people who commit crime, the consideration of the youth as a risk group has led to institutionalized intolerance of the youth and a further over-regulation of the youth, which interferes with their freedoms and rights. Despite the fact that policies intend to make the youth responsible for their actions and also make their families responsible for effective management, the policies have failed in terms of their intended purpose. The policies put forth to regulate the youth from criminal activity seek to ensure that the youth are responsible and manage their actions. As kemshall (2008) notes, “‘Active’ rather than ‘passive’ citizens are seen as the desirable norm, and the essence of the active citizen is the ability to self-manage risk from an early age. This has resulted in proactive and preventative risk policies, focused on the early identification of those ‘at risk’ or posing a risk” (Kemshall, 2008:23). This is an important aspect in the prevention of crime. However, these policies fail to address crime because focus on the risk aspect makes every youth or a young person appear as criminals who are targeted at any point in time. These policies take youths as criminals who should control their behaviors not to be arrested. In the England and Wales Youth Justice System, it has been found that one in three young children has a mental health concern, several of them come from poverty stricken homes, one in five has a learning difficulty and that there is a lack of focus on safeguarding, with more awareness placed on offending. It is also clear that the most vulnerable and victimized young people are those that persistent offenders. More issues such as the shortage of social workers, a third of young people in custody erroneously convicted and lack of alternatives to custody are important. In fact, these issues support Kemshall’s assertion that “in the risk society, individuals are framed as shapers of their own worlds ‘making decisions according to calculations of risk and opportunity’ (Petersen, 1996: 47), but facing blame and punishment if they get their choices wrong” (Kemshall, 2008:22). These issues show the failure of policy implementation because the focus and concentration of the policies on the youth as a risk group has made it difficult for the youth justice system to find and address the most pertinent issues faced by young people, which needs attention. England and Wales have the lowest age of criminal responsibility in Europe. This has a consequence in that the level of youth customer increases and confirms Kemshall’s assertion that under the risk group, the youth face much responsibility, blame and punishment for their choices and actions. This is a risk factor prevention paradigm that depends on profiling young individuals against risk factors identified through tools such as ASSET (Kemshall, 2008:28. In addition, the lower age of criminal responsibility has heightened societal attitude towards young people in the sense that the England and Wales’ society problematic behavior via a welfare lens of disadvantage and need. Therefore, Kemshall is correct in stating that viewing young people as a risk group makes them criminals in the eyes of the England and Wales Societies. Social and criminal justice policies in the youth justice system aim at preventing the youth from depending on welfare and/ or joining criminal careers. This approach has become popular because it promises an effective way for policy formulation and implementation with focus on prevention. However, the major problem with this is that policy has tended to lead research rather than research leading policy. This makes such an initiative ineffective (Kemshal, 2008:24). Risk based policies developed in England and Wales have brought about a welfare system versus a criminal justice system. This is a society that puts the responsibility on young people to understand between right and wrong, not for a moral society but rather to define criminal responsibility. The main issue arising from this is that the fact that a young person can understand between right and wrong, it does not mean that they are criminally responsible for their actions. The Youth Crime Action Plan in England and Wales has a triple strategy that is contradictory in nature because it includes enforcement, non-negotiable challenge and prevention. These three issues make it difficult for a proper youth justice system to work. As Kemshall states, the risk based policies have brought about conditional rights and conditional justice within the England and Wales Youth justice system. The youth have become an important aspect of self-actualization that encompasses different programs of active citizenship that have affected individual needs and rights. Individual needs are now understood from the perspective of social investment and opportunity creation while rights are understood as rights of access to factors such as education, training and labor as opposed to universal benefits (Kemshall, 2008:25). Both the United Nations Convention on the Rights of the Child (UNCRC) ratified by the UK government in 1991 and the Human rights expresses by the European Convention on Human Rights (ECHR) express and represent rights within the context of universality and certainty. However, the risk based policies on the youth in England and Wales are contrary to this. Kemshall supports this assertion by stating, “The rights of the community predominate and ‘criminal justice is a one-way street’…This ‘one-way street’ between communities and ‘at risk’ youth is particularly acute with the ‘new youth justice’ emphasizing responsibilities and rights (Kemshall, 2008:26). The translation of the risk-based policies on the youth has faced a lot of difficulty and brought about suffering for the youth rather than providing justice to the young people. Of particular importance is the fact that practitioners have demonized young people because of perceiving them as a ‘risk group’ rather than focus on the values of risk prevention. It is factual that practitioners play an important role in the implementation of a policy. As Kemshall (2008) points out, “Practitioners bring their own values and ideologies to bear on policy interpretation and delivery; they may, for example, focus on resilience rather than risk, care rather than control, and empowerment rather than marginalization (Kemshall, 2008:29). In terms of risk-based policies, practitioners have called for a focus on youth development and engagement in their societies. They are ambivalent on concepts of risk and youth. The failure of risk-based approaches in the youth justice system in England and Wales is that they have failed to recognize that young people do not conceive their lives as a source of risk or as posing risk to other people. As such, corrective systems led by adults may be resented and resisted. As Kemshall notes, young people could be proactive risk takers, which is true according to research. When policies are formulated to prevent young people from risk taking, they are bound to fail or cause problems. Not all the risk that young people engage in lead to crime. Recent research done by Boeck, et.al, 2006 shows that young people have a calculative attitude to risk-cost-benefit and desirability of outcome. The same study also showed that adults engage in risk behaviors such as drunk driving, committing illegal activities in the presence of young people and exposing young people to risks. This means that putting young people under the risk group is in the first place counterproductive since it generalizes them under the issues of youth justice system and fails to address the main problem of offenders. Putting all young people responsible for their actions through risk-based policies will not address the problems of youth offenders in England and Wales especially with the fact that high records of young offenders are recorded in the region. The youth justice system in England and Wales have not addressed the problems efficiently because the risk-based policies have failed to recognize the fact that young people are still growing and require a different perspective to issues of offending compared to their adult counterparts. Kemshall directly delves into this issue by stating that risk-based policies create a problem between rights and responsibilities. Kemshall (2008) states, “The tension between risks and rights needs to be located within a broader context of social opportunity and choice, and perhaps a greater emphasis upon the resources young people have to enable them to make the ‘right choice’ about risk” (Kemshall, 2008:30). The risk-based policies create a scenario where the youth have rights but do not have opportunities to explore those rights. It is difficult for young people to exercise responsibility as active citizens without taking risks. Expecting them to exercise rights without opportunities is illusionary and bound to fail. This is one of the reasons why England and Wales record high numbers of young offenders. Despite the fact that the Youth Justice Board calls for a holistic view of young people, yet the risk based policies, do not address this structural context. These policies expect the youth to live and act like responsible adults, yet they are not there mentally or physically. These facts support Kemshall’s assertion when he states “Conditionality and ‘responsible rights’ designed to produce active citizens may inadvertently produce disillusioned and distanced non-citizens who are excluded from the neo-liberal social contract (Kemshall, 2008:31). Kemshall has reviewed the youth justice system in England and Wales extensively including the policies put in place to address social and criminal aspects among young people. He has brought out the problems that exist within such a system that include taking the youth and risk as synonymous terms will similar meanings, expecting young people to act and behave like adults by understanding right and wrong and taking responsibility for their actions. This system gives young people rights without an opportunity to practice those rights and expect them to grow into active responsible adult citizens. This youth justice practice creates a possibility for practitioner resistance to current policy responses to ‘problematic’ and ‘risky’ youth because of their ineffectiveness. Such issues will create great and extensive costs. According to Kemshall’s words, “the costs are not merely financial, but also moral and social, and raise questions about the type of society we want to create and live in” (Kemshall, 2008:31). Reference List Kemshall, H 2008, Risks, rights and justice: Understanding and responding to youth risk. Youth Justice, 8(1), 21-37. Read More