IACAPAP Textbook of Child and Adolescent Mental Health

MISCELLANEOUS

Chapter

J.3

FORENSIC CHILD AND
ADOLESCENT PSYCHIATRY
Erica van der Sloot & Robert Vermeiren

Erica van der SlootLLM Criminal Law, MSc
Criminology
Researcher, Curium-Leiden
University Medical Center,
Academic Workplace Forensic
Care for Youth, Netherlands
Conflict of interest: nonereported

Robert Vermeiren
Professor of Child andAdolescent Psychiatry,
Curium-Leiden University
Medical Center, Academic
Workplace Forensic Care for
Youth & Professor of Forensic
Adolescent Psychiatry, VU
University Medical Center,
Amsterdam, Netherlands
Conflict of interest: nonereported

Source: Barbara Barry = Design 0101
This publication is intended for professionals training or practising in mental health and not for the general public. The opinions
expressed are those of the authors and do not necessarily represent the views of the Editor or IACAPAP. This publication seeks todescribe the best treatments and practices based on the scientific evidence available at the time of writing as evaluated by the authorsand may change as a result of new research. Readers need to apply this knowledge to patients in accordance with the guidelines andlaws of their country of practice. Some medications may not be available in some countries and readers should consult the specific drug
information since not all dosages and unwanted effects are mentioned. Organizations, publications and websites are cited or linked toillustrate issues or as a source of further information. This does not mean that authors, the Editor or IACAPAP endorse their content or
recommendations, which should be critically assessed by the reader. Websites may also change or cease to exist.
©IACAPAP 2012. This is an open-access publication under the Creative Commons Attribution Non-commercial License. Use,
distribution and reproduction in any medium are allowed without prior permission provided the original work is properly cited andthe use is non-commercial. Send comments about this book or chapter to jmreyATbigpond.net.au
Suggested citation: van der Sloot E, Vermeiren R. Forensic child and adolescent psychiatry. In Rey JM (ed), IACAPAP e-Textbook ofChild and Adolescent Mental Health. Geneva: International Association for Child and Adolescent Psychiatry and Allied Professions
2012.

Forensic

J.3

1

IACAPAP Textbook of Child and Adolescent Mental HealthAlthough child and adolescent psychiatric practice preferably takes place
within a voluntary patient-therapist relationship, this is not always so. In
some cases patients enter the area of forensic psychiatry, which covers all
psychiatric care that is provided in relation to legal processes. Forensic psychiatry
covers both diagnostic and therapeutic issues but a substantial part of the forensic
psychiatric work lies in the diagnostic field. In that context, the clinician is asked toassess an individual and make a report that can be used for legal decision making.
The content of the report, which makes specific guidelines advisable (Kraus et al2011), is thus open to people other than the clinician and the patient (and family).
Therapeutic issues in the forensic field are controversial because it is unclear towhat extent one may force a patient to undergo treatment.
For several reasons, minors and their families may be forced by law to
become a patient. This may be because either:• The (family) environment is considered suboptimal for the developmentof the child or• The underage person is suspected to have committed a criminal act or
has been convicted.

The first situation is rather specific to childhood as underage children largely
depend on adults who carry the responsibility of taking care of them. When the
caregiving adult does not fulfill this task properly, it is in the interest of the minorthat legal authorities take over. This may happen, for example, when maltreatment
or physical or sexual abuse is suspected or have occurred. A specific situation thathas become increasingly common over the last few decades relates to parental
conflict in case of divorce. This is a particularly complex and difficult area as parents
frequently accuse each other of maltreating or abusing their children. The second
situation in which minors are forced to accept treatment occurs when the children
themselves harm society by their behavior. This often goes hand in hand with thefirst situation − when adults do not fulfill their caregiving responsibility − although
this is not always the case. Children often break the law, resulting in contact withthe police and courts. This chapter focuses on youths who receive psychiatric careas a result of having committed an offence; this issue poses specific challenges when
considered in the international context.
The following paragraphs will focus on the goals of forensic psychiatry
and the developmental and psychiatric characteristics of juvenile offenders. Someinternational conventions, guidelines and rules concerning juveniles are also
described, highlighting differences in legislation between countries.

CRIMINAL LAW AND AGE
Overall, the penal system has two main roles: preventive and retributive. In
regards to prevention, a distinction is made between general and specific prevention.
General prevention refers to the effect of fear of being caught and punished indiscouraging people from committing an offence. Specific prevention targets
possible recidivism of the delinquent himself, who may abstain from offending
because of wanting to avoid further punishment.
Retribution meets the needs of the victims by providing them with a feelingof redress by knowing that the offender has been punished. In juveniles, a specificrole of the criminal law is re-education and stimulation of development. The
underlying idea is that minors commit offences (at least partly) because of their
Forensic

J.3

Minor
The terms “minor”,“juvenile”, “youth” and“child” in this article havethe same meaning as theterm “child” as defined inarticle 1 of the Convention
on the Rights of the Child:“For the purposes of thepresent Convention, a childmeans every human being
below the age of eighteen
years unless under thelaw applicable to the child,majority is attained earlier.”
Clinical tasks andskills related toforensic obligations
Custodial treatment• Assess the mental
health of the juvenile:
for acute conditions(suicide, psychosis,
substance abuse) within
24 hours of arrest or
detention; for othermental disorders within
the first few weeks• Re-evaluate mental
state frequently
throughout the legal
processes
Protection of the rightsof the juvenile• Be aware of thecountry’s laws andprocedures related tothe task• Evaluate adolescents’development in relation
to the impact andconsequences of legal
procedures
Risk assessment• Ascertain the risks
associated with theminor’s condition• Be cautious wheninterpreting findings
from risk assessment
and present findings as
temporary and weighted
as part of the expecteddevelopment of thejuvenile.

2

IACAPAP Textbook of Child and Adolescent Mental Healthimmaturity. By enhancing healthy development, further offending may be avoided
and help youngsters become law-abiding, well-functioning citizens.
Over the last few decades, emphasis has shifted away from protection andtowards retribution (Snyder & Sickmund, 2006). Even when dealing with younger
delinquents, the public demands that punishment must be strict and many
governments and courts are responding to this request. A well-known case in thisrespect was the murder in the UK of 2-year-old James Bulger by two 10-year oldboys. Some are convinced that an emphasis on punishment is the way to reduce
crime, because it is considered to strengthen the general preventive aspect.
Age of maturity
In juvenile penal law, the challenge is to find a balance between protection,
care and punishment. Because juveniles are immature, the goal is both to protect
and stimulate development, and to prevent further harm to society. An important
issue concerns the age of maturity: at what moment in life one considers underage
persons mature enough to be fully aware and in control of their acts. Being able toevaluate developmental maturity is thus an important task of the forensic clinician(Kraus et al., 2011). Consideration of etiological factors, both environmental andindividual, plays a role in this. The maturity of a person depends, for example, on
the quality of parental care but also on broader societal issues such as education. In
addition, the individual’s characteristics are important (e.g., intelligence). Current
knowledge about brain development shows that maturity is not yet fully achievedby the age of 18; development continues until the early- to mid-20s (Shaw et al.,2008). It is however unclear to what extent the immaturity identified by brain
research has behavioral consequences. Interestingly, notwithstanding evidence onmaturity, age of criminal responsibility varies considerably according to country,
from seven in Switzerland and Nigeria to 18 in Belgium (see Table J.3.1).

Table J.3.1
2009)
AGE
(years)Examples of age of criminal responsibility (Cipriani,

When doing diagnostic
work in the forensic field,
clinicians are expected toreport on their findings tolegal authorities. Therefore,
it is important that they:•
Know beforehand
who will be allowed toread the report and tocommunicate this to thepatient•
Know exactly what
the questions are they
have to report on, andthat patients know
these questions andunderstand them•
Focus their evaluation
work and their report onthese questions.
In relation to forensic
therapeutic work, it isimportant that clinicians:•
Remain in their
therapeutic role, whichmeans that obligations
to follow through withtherapy rest with thelegal authorities•
Are open to patients
about what will andwhat will not bereported to authorities.

COUNTRY

7

Liberia, Nigeria, New York (US), South Africa

8

Scotland, Sri Lanka, Zambia

10Australia, England, Northern Ireland, Switzerland,Texas (US), Wales

11

Japan

12

Canada, The Netherlands, Turkey

13

Algeria, Greece, Guatemala

14

Bulgaria, China, Germany, Italy, Romania

15

Czech Republic, Denmark, Finland, Norway, Sweden

16

Argentina, Cape Verde

Forensic

Procedural
guidelines forclinicians in theforensic field

J.3

3

IACAPAP Textbook of Child and Adolescent Mental Health

JUVENILE PENAL LAW
Care, protection and risk taxation
Forensic psychiatry is at the boundary between psychiatry and the law. As
already described, forensic child psychiatry, as compared to forensic psychiatryof adults, has specific characteristics resulting from the psychological immaturityof minors. The tasks of forensic child psychiatry have been described by Grisso(2004) as follows:•

The custodial treatment obligation. The obligation of society to help
people with an illness. When young people become involved with thejudicial system, society has the responsibility to make sure that illnesses
are recognized and treated. This is particularly so when minors arebeing detained because they and their families then lose the possibility
and freedom to seek help themselves. Because of the stress associatedwith being arrested and prosecuted, there is an increased likelihood oftriggering the onset of illnesses. Conditions that need specific attention
in these circumstances are psychotic deterioration, suicidal behavior andconsequences of substance abuse withdrawal.

•

Protecting the rights of persons in contact with the juvenile justice system.
Legal decisions can have a substantial impact on the young person’slife. Therefore, it is important to ascertain that youths understand theprocedures and the potential consequences of their decisions (Kraus etal., 2011). Also, it is necessary to ensure that children are cognitively
able and mature enough to understand the procedures. In the US, thisis, for example, important in relation to “Miranda” rights – the right torefuse to give self-incriminating information and the entitlement to havelegal counsel present at any interrogation. The person who waives thisright must understand what the potential consequences are. In countries
where young people can be transferred to adult courts, it is necessary toensure that these young people are able to understand and undergo adultcourt procedures. Because adolescents are known to think short term andfavor immediate gain (Reyna & Farley, 2006), they are more likely not
to act in their best interests when undergoing adult judicial procedures.
For example, during interrogation they may deny facts even in the faceof incontrovertible evidence, or to confess to a crime they have notcommitted to get rid of an unpleasant situation.

•

Risk taxation. Protecting society by predicting the likelihood of recidivism
is also important. Risk taxation not only serves the interests of the wider
population but also those of the young people themselves. However,risk taxation is a complex issue in juveniles. Because they are immatureand thus still developing, risk factors are likely to change, even without
intervention. Therefore, one needs to be careful when considering risk,
and always emphasize it as a momentary situation, that needs frequent
re-assessment.

James Patrick Bulger
James Bulger was a boy
from Kirkby, England,
who was murdered on 12
February 1993, when aged
two. He was abducted,
tortured and murderedby two ten-year-old boys,
Robert Thompson and
Jon Venables. Jamesdisappeared from the New
Strand Shopping Centre
in Bootle, near Liverpool,
while accompanying his
mother. His mutilated bodywas found on a railway line
two-and-a-half miles away
in Walton, two days after
his murder. Thompson and
Venables were charged
on 20 February 1993 withJames’ abduction andmurder. The pair was foundguilty on 24 November
1993, making them theyoungest convictedmurderers in modern
English history. They weresentenced to custody until
they reached adulthood,initially until the age of18, and were released
on a lifelong licence inJune 2001. The case has
prompted widespreaddebate on the issue of how
to handle young offenders
when they are sentenced orreleased from custody.
On 2 March 2010, theJustice Secretary, Jack
Straw, stated that Venables
had been returned to prison
because of “extremely
serious allegations”, andstated that he was “unable
to give further details of thereasons for Jon Venables’s
return to custody, because
it was not in the public
interest to do so.” (Source:
Wikipedia).

In order to fulfill these tasks well, the forensic expert needs to be able to conduct
a thorough diagnostic assessment, and weigh the needs of offenders against therequirement to protect society.

Forensic

J.3

4

IACAPAP Textbook of Child and Adolescent Mental Health

INTERNATIONAL CONVENTIONS, RULES ANDGUIDELINES
Some international conventions and treaties concerning the rights ofminors and their protection have a direct influence on national legislation.
Therefore, it is important for clinicians to be knowledgeable about internationalrules and guidelines and how one’s country of practice has implemented thoserules. The most important children’s rights instrument is the United Nations (UN)Convention on the Rights of the Child (hereafter referred to as “the Convention”)
grounded on the Universal Declaration of Human Rights. Besides the Convention,
the UN adopted three important guidelines concerning juveniles, which had an
influence on and can be used together with the Convention. In this section a brief
description is given of the most important international conventions relevant tojuvenile delinquents. For the scope of this chapter we will focus on the relevant
articles only (for a more detailed description of the Convention see Chapter J.7).
Besides the Convention, three other rules provide guidelines for juvenile
justice systems on three different levels (Meuwese et al, 2005):(a) Implementing a juvenile justice system(b) Creating social policies for prevention of juvenile delinquency, and(c) Protecting the right of incarcerated juveniles for social reintegration.
These guidelines are derived from the so-called Beijing rules, Riyadh
Guidelines and Havana Rules respectively.
Beijing Rules
On 29 November 1985, the General Assembly of the UN adopted theStandard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules).
The Beijing Rules provided member states with guidelines for the protection of
the rights of juveniles with the establishment of a specific juvenile justice system.
Although the Beijing Rules are recommendations − and have therefore no binding
legal status − member states were requested to incorporate these rules within theirnational legislation. The Beijing Rules were already in existence four years before
the Convention was adopted and influenced the wording of the Convention. Someof the principles of the Beijing rules are incorporated in articles 37 and 40 of theConvention and will be discussed later in the chapter.
Riyadh Guidelines

Serious concerns raised
as children criminalised at
10.View video by clicking on
the picture.

The UN Guidelines for the Prevention of Juvenile Delinquency (“Riyadh
Guidelines”) were adopted by the UN on 14 December 1990. The Riyadh
Guidelines should be seen as a further clarification and concretization of therights of the child, especially of article 40 of the Convention. These guidelines
are child-centred, that is, the minor is seen as a person and not just as an object.
The guidelines are comprehensive and encourage a pro-active approach to theprevention of juvenile delinquency (Meuwese et al, 2005). The Riyadh Guidelines
provide countries with standards to prevent juvenile delinquency, focussing on
juveniles who are at “social risk” and suggesting multidisciplinary measures tominimise risk to children coming in contact with the legal system. Like the Beijingrules, the Riyadh Guidelines are not binding, their influence is moral.

Forensic

J.3

5

IACAPAP Textbook of Child and Adolescent Mental Health

Havana Rules
The UN Rules for the Protection of Juveniles Deprived of their Liberty (“Havana
Rules”) were adopted by the UN in December 1990 and are a supplement to the
Beijing Rules. They provide standards for the protection of juveniles within thecriminal justice system. For example, incarcerated minors should be segregatedfrom adults and incarcerated with peers of the same sex, age and personality. Also
they should be provided with appropriate education or training. Although theserules are not legally binding they are consistent with articles 37 and 40 of theConvention.
UN Convention on the Rights of the ChildThe most important children’s rights document is the Convention, whichis grounded on the Universal Declaration of Human Rights. The Convention was
adopted by the UN on 20 November 1989 and enacted on 2 September 1990.
With the exception of the US and Somalia – among others – 193 countries
have ratified the Convention, although many member states – for example theNetherlands (Declarations and Reservations to the Convention on the Rights of
the Child, n.d.) – have made some reservations or declarations to the provisionsof the Convention.
The Convention spells out the basic human rights that children all over
the world should have and is legally binding for signatory states. By ratifying theConvention, member states commit themselves to the protection of the rights ofchildren and to be monitored by the UN Committee on the Rights of the Child
concerning the status of the rights of children in their country. Articles 37 and
40 of the Convention spell out the key principles for juvenile justice. Together
with the leading principles of the Convention (General Comment nr. 10, 2007)
these articles form the basis for the legal status of minors deprived of their liberty(Liefaard, 2010).

Thomas Spence’s book
“Rights of Infants” is one of
the earliest English-language
statements of the rights ofchildren. Thomas Spence(June 21, 1750 – September
8, 1814) was an English
revolutionary and advocateof the common ownershipof land, for which he wasincarcerated several times.
(Photo: the Thomas Spence
Trust)

Looking at article 37 one can see that it sets the minimum conditions withwhich countries need to comply when a child is deprived of liberty. This article
can be divided into two different sections. First, it sets the minimum conditions
concerning deprivation of liberty itself. According to article 37 this can only takeplace “in conformity with the law,” as “a last resort” and “for the shortest period oftime.” Second, once a minor is deprived of liberty, the juvenile should be treated“with humanity and respect” and the needs of the juvenile ought to be taken into
account. For example, in the Dutch legal system – based on Constitutional Law inconjunction with the Convention – juveniles can only be limited in the executionof their rights when this is necessary for the implementation of a deprivation ofliberty and the objectives thereof (Muller & Vegter, 2009).
Article 40 of the Convention defines the minimum conditions for dealing
with juveniles who have broken the law:••

The right to due process
Age appropriateness; the age below which juveniles cannot be held
responsible for infringement of penal laws is explicitly stated.

Important concepts used in this article include: dignity and worth,innocent until proven guilty, promoting reintegration, legal assistance, access to an

Forensic

J.3

6

IACAPAP Textbook of Child and Adolescent Mental Health

UN Convention on the Rights of the Child
Article 37
States Parties shall ensure that:(a)

No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital
punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons
below eighteen years of age;
No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of achild shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest
appropriate period of time;
Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the humanperson, and in a manner which takes into account the needs of persons of his or her age. In particular, every childdeprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so andshall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional
circumstances;
Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate
assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or othercompetent, independent and impartial authority, and to a prompt decision on any such action.

(b)
(c)

(d)

Article 40
1.

2.

3.

4.

States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal
law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces
the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's
age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.
To this end, and having regard to the relevant provisions of international instruments, States Parties shall, inparticular, ensure that:(a)
No child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason ofacts or omissions that were not prohibited by national or international law at the time they were committed;(b)Every child alleged as or accused of having infringed the penal law has at least the following guarantees:(i)
To be presumed innocent until proven guilty according to law;(ii)
To be informed promptly and directly of the charges against him or her, and, if appropriate,through his or her parents or legal guardians, and to have legal or other appropriate assistance inthe preparation and presentation of his or her defence;(iii)
To have the matter determined without delay by a competent, independent and impartial authority
or judicial body in a fair hearing according to law, in the presence of legal or other appropriate
assistance and, unless it is considered not to be in the best interest of the child, in particular,
taking into account his or her age or situation, his or her parents or legal guardians;(iv)
Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse
witnesses and to obtain the participation and examination of witnesses on his or her behalf underconditions of equality;(v)
If considered to have infringed the penal law, to have this decision and any measures imposedin consequence thereof reviewed by a higher competent, independent and impartial authority or
judicial body according to law;(vi)
To have the free assistance of an interpreter if the child cannot understand or speak the language
used;
(vii)
To have his or her privacy fully respected at all stages of the proceedings.
States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specificallyapplicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular:(a)
The establishment of a minimum age below which children shall be presumed not to have the capacity to
infringe the penal law;(b)
Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial
proceedings, providing that human rights and legal safeguards are fully respected.
A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care;education and vocational training programmes and other alternatives to institutional care shall be available to ensurethat children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances
and the offence.

Forensic

J.3

7

IACAPAP Textbook of Child and Adolescent Mental Healthinterpreter, and minimum age.
As one can see, all the member states have been provided with the same
guiding principles – in case of the Convention, mandatory – to protect minors andhow to treat them in case minors transgress the law. In the next section we will see
that, although the same guidelines are implemented, there are differences between
countries which can influence clinical practice.
Country-specific legislation
The balance between protection and punishment concerning juvenile
delinquents differs according to country. The juvenile justice laws in the
Netherlands and Belgium are a good example. In every UN member state minors
commit crimes and in every state minors can be held by the police, interrogated,
sent to juvenile justice institutions, and often punished. Although these similarities
between states are obvious, there are differences that cannot be ignored.
Firstly, implementation of the Convention is not homogeneous. Many
countries have made reservations and declarations to the provisions of theConvention before their implementation. For example, in relation to articles 37
and 40 of the Convention, the Netherlands has made the following reservations
upon implementation, which have somewhat modified the legal effect of article 37
and 40, and adjusted the articles to their own specific juvenile criminal law. Belgium
however, has only made one interpretive declaration to article 40 (Declarations andReservations to the Convention on the Rights of the Child, n.d.).
The Netherlands•

Article 37: “The Kingdom of the Netherlands accepts the provisions ofarticle 37 (c) of the Convention with the reservation that these provisions
shall not prevent the application of adult penal law to children of sixteen
years and older, provided that certain criteria laid down by law have beenmet.”
• Article 40: “The Kingdom of the Netherlands accepts the provisions ofarticle 40 of the Convention with the reservation that cases involving
minor offences may be tried without the presence of legal assistance andthat with respect to such offences the position remains that no provision
is made in all cases for a review of the facts or of any measures imposed asa consequence.”
Belgium•“With regard to article 40, paragraph 2 (b) (v), the Belgian Government
considers that the expression ‘according to law’ at the end of that provisionmeans that:(a)This provision shall not apply to minors who, under Belgian law,are declared guilty and are sentenced in a higher court following
an appeal against their acquittal in a court of the first instance;(b)
This provision shall not apply to minors who, under Belgian law,
are referred directly to a higher court such as the Court of Assize.”

As one can see there are considerable differences between the two. The
Netherlands has two reservations on the implementation of the Convention to the
Dutch legal system. Belgium only provides an interpretive declaration to clarify themeaning of an expression used in article 40.

Forensic

J.3

Reservation anddeclaration
According to the Vienna
convention on the law oftreaties (n.d.) the following
definition is used for areservation made upon atreaty:Reservation “means aunilateral statement,
however phrased or
named, made by a State,when signing, ratifying,
accepting, approving
or acceding to a treaty,
whereby it purports to
exclude or to modify thelegal effect of certain
provisions of the treaty intheir application to that
State.”
Declaration is aclarification of a meaningof an expression used.

8

IACAPAP Textbook of Child and Adolescent Mental Health

Besides the regular criminal law system for adults, the Netherlands also has
adopted a juvenile criminal law system in which minors as young as 12 years ofage can be held accountable for committing a crime and can therefore be convicted
and punished. However, because juveniles are still developing, the juvenile justicesystem in the Netherlands acknowledges this and incorporates objectives suchas re-socialization and education besides retribution and prevention. The Dutch
juvenile justice system therefore emphasizes pedagogical support and re-educationas part of the legal decision making, and the minor as a person is the primaryconsideration during this process. Belgium, on the contrary, has no separate
juvenile justice system; minors younger than 18 years are protected by civil law(Law on the Protection of Young People), that is, juveniles under the age of 18 areconsidered to have no criminal responsibility. Therefore, judges can decide toimpose measures upon the delinquent minor, which can have an educational orprotective character (van Dijk et al, 2006); see Table J.3.2.
Considering the above, one could conclude that the difference is thebalance between considering juvenile delinquent acts as criminal or envisioning
youngsters as immature persons who need help. In each country, the balance
between punishment and a therapeutic approach varies, as well as the frequency
in which specific consequences are given. In practice, forensic psychiatrists needto understand and have a good knowledge of the judicial framework they have towork with, which varies. Clinicians need to be aware of the different aspects ofcriminal law, namely general prevention, specific prevention and retribution and,for juveniles, re-education and promoting development. Clinicians need to use
this knowledge when dealing with policy makers to explain how these roles must
be combined appropriately.

Life in prison for juveniles?
View video by clicking on the
picture.

DEVELOPMENTAL AND PSYCHIATRIC ISSUES
When dealing with delinquent youths, a number of developmental andpsychiatric issues are of importance. Firstly, while many youths show delinquent
Table J.3.2
Differences between legal systems using The
Netherlands and Belgium as examples.
The Netherlands:•
Juvenile criminal law applies to children aged 12-18.
•
Consequences:− Punishment can be given, including detention in juvenile jail (maximum 2
years)− Offences are added to the personal penal record, some to be kept for life
(sexual offences)− The rights of offenders are regulated, e.g., with regards to arrest,
interrogation, and detention
Belgium•
There is no juvenile criminal law but civil protection law until age 18.
•
Consequences− Only protection measures are possible, including detention− No personal penal record until the age of 18•
Regulation of rights in relation to being protected but not in relation to arrest.
In both countries, minors committing an offence at age 16 and 17 can be convicted as adults,
under specific conditions of severity of the crime and maturity of the offender.

Forensic

J.3

9

IACAPAP Textbook of Child and Adolescent Mental Healthbehavior over the course of their lives, only a minority become persistent offenders.
The dual taxonomic model of Moffitt (1993) is useful to understand these pathways.
Moffit’s work has shown that, apart from an adolescent-onset delinquent groupthat tends to desist from crime later on (adolescent-limited), there is an early-onset
group which has an increased risk of persisting in their delinquent behavior (lifecourse persistent). Offenders in the life-course persistent group have risk factors in
the individual and environmental domains (Moffitt, 1993). They usually growup in multi-problem families, with parents who all too often have psychiatricproblems themselves. Individually, they are recognized as being impulsive andhaving lower intelligence, particularly in the verbal domain. In contrast to thelife-course persistent group, the adolescent-limited group has fewer risk factors
and often commits offences because of peer pressure. Risk of persistence in thelong term is lower, and thus may not require intensive intervention. However, asmall subgroup of the adolescent-limited group who abuse substances will persist
in their offending behavior and need to be recognized. Although the life-course
persistent group is estimated to comprise only 5% of the (male) population, they
commit half of all offences attributed to adolescents. This group needs intensive
intervention and society needs to be protected from them.
Secondly, individuals are vulnerable to committing offences until early inadulthood because of developmental immaturity. Current understanding of thedevelopment of cognition and executive functions suggests that in contrast to
adults, who take decisions in the rational part of the brain, children and adolescentsare more inclined to use lower brain areas. Consequently, they are more likely tomake irrational and impulsive decisions (Reyna & Farley, 2006). An immature
way of thinking is normative for adolescents resulting in an underestimationof negative consequences and in being more likely to come up with either/or
responses than with a range of options. As a consequence adolescents are more
likely to react inappropriately (e.g., aggressively) to others because they perceive
messages as threatening more often and because they lack an adequate arsenal ofreaction modalities. Further, they are less likely to perceive certain behaviors as
risky (Cohn et al, 1995). As a result, they do not fully understand that an arrest
and adjudication (legal judgment) are likely to harm their future drastically. It is
known that moral development only comes to maturity in early adulthood (Colbyet al, 1987). Because of this, juveniles do not empathize with others in the same
way that we expect of adults; thus they do not fully understand the effect onothers of their inappropriate behavior. Immaturity, as described here, does not
only influence the likelihood of committing an offence but also an adolescent’s
attitude during the judicial procedures.
Thirdly, several studies have shown that a majority of incarcerated youth
suffers from psychiatric disorders and that comorbidity occurs very frequently
in this group (Colins et al, 2010; Vermeiren et al, 2006). Recent studies havedemonstrated that apart from internalizing (i.e., depression and anxiety) andexternalizing disorders (i.e., conduct disorder, oppositional defiant disorder,
ADHD), psychosis-related symptoms as well as substance abuse and dependence
are very common in juvenile delinquent populations (Colins et al, 2010). Whilemost studies on adolescents in detention have focused on boys, some studies
on girls are available (Teplin et al, 2002; Vermeiren, 2003). Although antisocial
behavior is much less frequent in girls than in boys, psychiatric pathology may be

Forensic

J.3

Children in legal
proceedings
In legal proceedings, ajuvenile younger than 18
years should always be
considered immature, notonly because of normative
developmental data
but also because of theconsequences of frequently
occurring psychiatricdisorders. This has as aconsequence that juveniles:•
Are more likely tocommit crimes without
fully understanding
the consequences
for the victim and forthemselves•
Are more likely to react
inappropriately during
interrogation, either by
denying even in theface of incontrovertible
evidence or admitting
to a crime they havenot committed•
Are less likely tohave a realistic viewof the long-term
consequences of legal
decisions.

10IACAPAP Textbook of Child and Adolescent Mental Healthmore prevalent among detained girls, in particular depression and post-traumaticstress disorder, while externalizing disorders and substance abuse and dependence
may be similar in boys and girls.
In this chapter we have discussed a variety of issues forensic psychiatrists
need to know for the practice of their profession. As described, the tasks of theforensic psychiatrist have to be performed always with a good knowledge of thedevelopmental and psychiatric characteristics of juvenile offenders. Furthermore,countries vary considerably in the way they handle juveniles committing delinquentacts. On an international level, the implementation of conventions, rules andguidelines differ according to county. These differences substantially relate to thebalance between protection and punishment, whether choosing a punishment
or a therapeutic approach. For example, while some countries have adopted ajuvenile criminal law system, others have not, considering that juveniles do nothave criminal responsibility. One should however contemplate that the differences
described are not all-embracing. In conclusion one could say that besides thecharacteristics and development of juvenile delinquents, a clinician should beaware of the national and international legislation and the judicial framework of
their country of practice.

REFERENCES

Cipriani C (2009). Children’s Rights and the Minimum Age of
Criminal Responsibility: a Global Perspective. Farnham:
Ashgate.

Moffitt TE (1993). Adolescence-limited and life-coursepersistent antisocial behavior: a developmental
taxonomy. Psychology Review,100:674-701.

Cohn LD, Macfarlane S, Yanez C et al (1995). Risk-perception:
Differences between adolescents and adults. Health
Psychology, 14:217-222.

Muller ER, Vegter PC (2009). Detentie. Gevangen in Nederland.
Alphen aan de Rijn: Kluwer.

Colby A, Kohlberg L, Speicher B et al (1987). The Measurementof Moral Judgment Vols 1 & 2. New York: Cambridge
University Press.
Colins O, Vermeiren R, Vreugdenhil C et al (2010). Psychiatricdisorders in detained male adolescents: a systematic
literature review. Canadian Journal of Psychiatry,
55:255-263.
Grisso T (2004). Double Jeopardy: Adolescent Offenders with
Mental Disorders. London: The University of Chicago
Press.
Kraus et al (2011). Practice parameters for child and adolescent
forensic evaluation. Journal of the American Academy ofChild & Adolescent Psychiatry, 50:1299 –1312.
Liefaard T (2010). [De rechtspositie van jeugdigen in justitiële
jeugdinrichtingen in het licht van internationale
mensenrechten en actuele ontwikkelingen]. Delikt enDelinquent, 70:1115-1140.
Meuwese S, Blaak M, Kaandorp M (2005). Handboek
Internationaal Jeugdrecht. Een toelichting voor
rechtspraktijk en jeugdbeleid op het Verdrag inzaken
de Rechten van het Kind en andere internationale
regelgeving over de rechtspositie van minderjarigen.
Nijmegen: Ars Aequi Libre.

Forensic

J.3

Office of the United Nations High Commissioner of Human
Rights (n.d.). Declarations and Reservations to theConvention on the Rights of the Child.
Reyna VF, Farley F (2006). Risk and rationality in adolescentdecision making: implications for theory, practice, andpublic policy. Psychological Science in the Public Interest,
7:1-44.
Shaw P, Kabani NJ, Lerch JP et al (2008). Neurodevelopmental
trajectories of the human cerebral cortex. Journal of
Neuroscience, 28:3586-3594.
Snyder HN, Sickmund M (2006). Juvenile Offenders and Victims:
2006 National Report. Washington, DC: Departmentof Justice, Office of Justice Programs, Office ofJuvenile Justice and Delinquency Prevention.
Teplin LA, Abram KM, McClelland GM et al (2002).
Psychiatric disorders in youth in juvenile detention.
Archives of General Psychiatry, 59:1133-43.
United Nations Convention on the Rights of the Child, General
Comment nr. 10 ‘Children’s Rights in Juvenile Justice’,
CRC/C/GC/10, 25 April 2007.
United Nations General Assembly, Resolution 40/33, 29 Nov.
1985, United Nations Standard Minimum Rules for the
Administration of Juvenile Justice (“The Beijing Rules”),
UN Doc, A/RES/40/30.

11IACAPAP Textbook of Child and Adolescent Mental Health

United Nations General Assembly, Resolution 44/25, 20 Nov.
1989, Convention on the Rights of the Child, UN Doc.,
A/RES/44/25.
United Nations General Assembly, Resolution 45/112, 14 Dec.
1990, United Nations Guidelines for the Preventionof Juvenile Delinquency (The Riyadh Guidelines), UN
Doc, A/RES/45/112.
United Nations General Assembly, Resolution 45/113, 14
Dec. 1990, United Nations Rules for the Protectionof Juveniles Deprived of their Liberty, UN Doc, A/
RES/45/113.

van Dijk C, Dumortier E, Eliaerts C (2006). Survival of theprotection model? Competing goals in Belgian
juvenile justice. In J Junger-Tas & SH Decker (eds),
International Handbook of Juvenile Justice, New York:
Springer (pp187-224).
Vermeiren R (2003). Psychopathology and delinquency
in adolescents: a descriptive and developmental
perspective. Clinical Psychology Review, 23: 277-318.
Vermeiren R, Jespers I, Moffitt T (2006). Mental problems injuvenile justice populations. Child Psychiatric Clinics ofNorth-America, 15:333-351.

United Nations Treaty Collection (n.d.). Vienna Convention on
the Law of Treaties.

Forensic

J.3

12