Dr Wendy O’Brien is a criminologist with research expertise on violence against children, children's rights, and children's access to justice. With a sustained focus on the legal and therapeutic responses to children in conflict with the law, Wendy’s research comprises both legal scholarship and research on the practical implementation of public policy - including evaluation of social sector service delivery to children. Wendy has provided expert evidence to a number of child protection reviews, and she regularly serves on research advisory boards for projects on child sexual assault. She is also a current member of the Asia-Pacific Council for Juvenile Justice (APCJJ).

Wendy lectures in criminology at Deakin University in Australia. Prior to her appointment at Deakin, Wendy served seven years as Senior Research Fellow at the Australian Crime Commission where she conducted intelligence led research and provided policy advice on legal and therapeutic responses to children in conflict with the law.

In Australia, children as young as 10 are charged, convicted and sentenced for breaches of the law. You have advocated that the MACR should be increased to 14, and that the principle of doli incapax be applied consistently to all persons under the age of 18. What are the main forces of opposition when trying to achieve these goals?

Changing the MACR in Australia would require legislative change in each of the Australian states and territories, as youth justice is governed at the state rather than the national level. It is important to note that states and territories do regularly reform their youth justice legislation, so a change to the MACR is certainly something that each state and territory could achieve.

The persistent barrier to this change stems from a problematic mix of political and community opposition to any legislative or policy reform that would uphold children’s rights and prioritise the rehabilitation and wellbeing of children in conflict with the law.

In Australia, as in many other jurisdictions, the media plays a very powerful role in perpetuating negative stereotypes about children and young people who have come into conflict with the law. These sensational reports play largely into community-held fears about crime. Although crime data shows a reduction in youthful offending in Australia, misplaced fears about ‘young offenders’ remain a key driver of community support for political responses that are ‘tough on youth crime’.

In which other ways does the Australian juvenile justice system go against international standards, in your view?

In Australia, Indigenous children are over-represented at every stage of the criminal justice process, and Indigenous children are 24 times more likely to be incarcerated than non- Indigenous children. The impacts of this over-representation continue to draw comment in reports of United Nations human rights mechanisms. This unacceptable situation is exacerbated by Australia’s low MACR, as the vast majority of 10-12 year-old children criminalised in Australia are Indigenous.

While redressing the disproportionate criminalisation of Indigenous children and young people is most certainly the number one priority, there are other challenges in ensuring Australian youth justice practices comply with international standards. This is a complex picture though, as the challenges differ from one state and territory to another.

In general terms, I would direct attention to the need to ensure that children are never detained in adult jails, and the importance of ensuring that imprisonment is a measure of last resort – thereby reducing the very high numbers of children and young people held on remand.

It is also incredibly important that reform be enacted to halt violence against children and young people in Australian youth justice facilities. In recent years there has been much media attention paid to the abuses endured by Australian children and young people in youth justice facilities.

In your research regarding Australian children who have sexually abused their peers, you have identified that misguided responses to incidents leaves children at risk. What has to change in order to reverse this phenomenon?

The failure to respond appropriately to children and young people with sexually harmful behaviours is a facet of a much broader problem, which is that too often the opportunity is missed to provide early intervention for children who need practical and therapeutic supports early in life. Systemic failures of this kind mean that we miss a crucial opportunity for rehabilitation, and for ensuring children’s wellbeing across their life-course.

Clinical evidence shows, for example, that children with sexual offending behaviours will desist, providing that they are offered appropriate therapeutic counselling early in the course of their behaviours. Unfortunately, when incidents occur the responding adults often make misguided choices, by either ‘minimising’ the behaviours or by ‘catastrophising’.

By minimising the behaviours, the therapeutic needs of all children involved remain unaddressed. This is an unacceptable perpetuation of risk for both the child with the behaviours and the children with whom they interact. Conversely, when adults ‘catastrophise’ in response to incidents, they may publicly shame or stigmatise a child, creating deep harm that ultimately compromises a child’s wellbeing and their prospects for rehabilitation.

To ensure that children and young people receive sensitive, timely and effective responses, it is important that social workers, child protection officers, police officers, teachers, the judiciary, and the broader community, receive education about age-appropriate sexual behaviours and those behaviours that exceed commonly accepted developmental bounds.

A further priority is to promote awareness about the fact that behaviours of this kind very often stem from childhood trauma or developmental adversity. Punitive and stigmatising responses to traumatised children will only deepen harm and marginalisation, compromising children’s prospects for rehabilitation and their wellbeing in both the short and long term.

You have written about children’s participatory rights to freedom of expression and access to information online. In relation to this topic, which do you think are the key measures or actions that should be taken to prevent children misusing this access to become perpetrators of online violence against their peers or other people?

It is a mistake to place all responsibility for online safety with children and young people themselves. Further work needs to be done to regulate the powerful political and commercial interests that drive much of the content on the internet, with continued work to ensure that children’s rights are meaningfully considered.

Another important component of this work is the production of child-friendly versions of the terms and conditions, and privacy settings, for the social media sites popular with children and young people – it is great to see that these have been developed by Children’s Commissioners, among others, in various countries. These empower children to safely navigate the online world themselves.

With respect to the question about children’s engagement in abusive behaviours online – it is important to remember that the adult world is increasingly providing children with extremely mixed messages about sex, violence, power and acceptable community standards in interpersonal relationships. We cannot expect children to interpret these contradictory messages unless we provide them with sound role models, meaningful counter narratives, and education about their own rights and responsibilities in interpersonal relationships.

This is the case with respect to children’s interactions in both the online and offline worlds. There is a balance to be struck here between protective and participatory rights. While educating children and young people about safe and respectful ways to navigate the online world is important, so too is the recognition that children and young people also have much to teach adults about online safety, and about respectful behaviours.

Children are full and active subjects in both the online and offline worlds. There is work in Australia that demonstrates that children and young people can take a leading role in internet safety education, and in the design of internet safety policies. Providing children and young people with meaningful opportunities to help shape the digital world, and to help shape the policies that regulate their access to the digital world, is consistent with children’s participatory rights as enshrined in the CRC.

You have advocated against the naming-and-shaming policies for children in conflict with the law. Supporters of such measures often argue that they serve as a deterrent, an argument which you have refuted. Could you please explain the main reasons why these policies not only go against the child’s best interests, but also society as a whole?

International law reminds us that children, by virtue of their developmental stage, require a different criminal justice response to that accorded to adult offenders. A disproportionately high number of children in conflict with the law have experienced adversity and trauma, including family violence, family disruption, and poverty, prior to their interaction with the criminal justice system. This signals the vulnerability of the children and young people who come in conflict with the law, and the need for supports to assist with rehabilitation and reintegration.

Furthermore, there are very robust criminological data to show that the offending behaviours evident in adolescence are unlikely to persist across the life-course. Yet by publicly naming and shaming a child, the criminal justice system, and the media, impose lifelong consequences on a child which radically compromise a child’s chances of rehabilitation. What reasonable chance of rehabilitation does a child have if their name and photograph is circulated globally under the heading “child monster”?

The implications of naming and shaming in the digital era are particularly concerning, as the rapid spread of information, and the permanence of the public record, imposes a lifelong stigma that is tantamount to saying that the child is beyond rehabilitation.

Children, by virtue of their youth, have a special capacity for rehabilitation. It is in the interests of all for children to be provided with the rehabilitative supports they need in order to embrace their potential for a meaningful life as a member of the broader community. This approach enhances community safety.