Are our courts fit for purpose when dealing with children?

Analysis: In Britain, under the guise of a search for justice, we indulge a lust for vengeance

The idea of two primary school children appearing at the Old Bailey as the youngest ever defendants in a British rape case was, from the outset, a disquieting notion. But whatever the verdict had been it would have raised the question of whether the Old Bailey, and a full-blown legal trial, is the best forum in which to deal with a case like this.

The age of criminal responsibility in Britain is fixed at 10 because it is generally supposed that a child that old can tell the difference between right and wrong, and, more subtly, can differentiate between bad behaviour and serious wrongdoing. Most parents would agree with that. What is more contentious is whether a 10-year-old has the cognitive abilities to fully appreciate the consequences of their actions. Or to understand what is going on in a court. Or to give apt reactions to their solicitor or barrister in the way that an adult defendant can.

Our system of justice is adversarial in nature. Each case is a joust between two barristers seeking a clear verdict, guilty or not. But the truth is rarely so black and white, particularly where children are involved. That was clear from some of the questions and statements in this case. The mother told the court that her daughter said that the boys "had been doing sex with her". She asked what that meant. "She said they put their willies inside me." But what a mother and child may mean by "inside" can be worlds apart.

Similar problems arise with police questioning. One officer asked one of the boys: "Do you understand what sex is?" Such questions are minefields. There are cognitive chasms to be crossed here and children do not have the vocabulary, or world experience, to give answers that can be respectably subjected to linguistically precise cross-examination.

The danger is always that we project an adult world-view on to the experiences which children perceive quite differently. The only time that the girl screamed during this incident was when she saw a spider.

So is the system is fit for purpose in such cases? Some people may feel that the process of cross-examination would inevitably intimidate an eight-year-old to the point where she just agrees with whatever an adult puts to her. But all adults are forced to ask children leading questions when a child answers only with a single word, a grunt or a nod.

What would have been more productive was a consensual search for the truth and an attempt to arrive at a common view on what was the best way to deal with all three of these children. Some other countries, like Scotland or France, attempt that through the legal process, but an examining magistrate questions the child. In Sweden a child psychologist sees the child and provides a statement to the court.

But might it not be better to deal with such cases through child protection proceedings? That would involve a joint case-conference with police, social workers, teachers and everyone involved with both the victims and the alleged perpetrators all present.

In this case, statements from teachers were solicited and presented by the defence barristers. One boy was described as a model pupil who had never displayed and tendency to bullying or sexual behaviour. Such a contribution in a multi-agency conference would contribute to a more nuanced judgment than conviction or acquittal.

Suggestions that we should raise the age of criminal responsibility in the UK are invariably judged by populist newspapers and politicians against the worst imaginable examples. The suggestion was last made, with spectacularly ill-judged timing, earlier this year by the Children's Commissioner, Dr Maggie Atkinson. She did it just as the child killer, Jon Venables, who was 10 when he murdered the toddler James Bulger, was being recalled to prison.

The idea that Venables should not have been publicly tried provoked outrage, even though had he been dealt with under such a child protection system he would have ended up in the same secure children's home, with the same treatment by the same psychologists, psychiatrists, educators and counsellors, for the same length of time.

Child offenders have become politicised here in a way which mystifies other nations. A similar killing in Trondheim around the time of the Bulger murder was treated entirely differently by the Norwegian authorities, press and the parents of all the children involved. The killers there have not since had to be recalled to jail.

In Britain, under the guise of a thirst for justice, we indulge a lust for vengeance. It is as if we need a vehicle for outrage displaced from wider disquiet about social trends for which child crime becomes a kind of lightning conductor. There is an atmosphere of moral panic which brands all youths as hostile hoodies, up to no good. In this febrile atmosphere the working assumption is that all kids are guilty unless otherwise proved.

Of course very serious crimes – like murder and rape – must be taken very seriously. But they are a tiny minority. Only 3 per cent of young offenders who admit or are convicted of an offence receive a custodial sentence. For the rest, the criminal justice system is not the best way to treat children accused of most offences if what we are seeking is the best outcome for all involved.

Adversarial law seeks winners and losers. But the activities of delinquent youth often produce no-win situations. Sometimes the least-worst option is realistically the best that can be achieved.

Justice should ultimately be about repairing damage to our social fabric. So often it is not. Instead it is a way of giving vent to society's self-righteous indignation. But that way, in the end, we all lose.