Special considerations may apply to the prosecution of children. The longer term damage which can be done to a child because of an encounter with the criminal law early in his or her life should not be underestimated and consequently in some cases prosecution must be regarded as a severe measure with significant implications for the future development of the child concerned. Whilst each situation must be assessed on its merits, frequently there will be a stronger case for dealing with the situation by some means other than prosecution, such as by way of caution or youth justice conference under the Young Offenders Act 1997. On the other hand, the seriousness of the alleged offence, harm to any victim and the conduct, character and general circumstances of the child concerned may require that prosecution be undertaken.
The public interest will not normally require the prosecution of a child who is a first offender where the alleged offence is not a serious one.
Different considerations may apply in relation to traffic offences where infringements may endanger the lives of the young driver and other members of the community.
The factors set out in Guideline 4 are also relevant to any consideration as to whether a child should be prosecuted; however, the following matters are particularly important:
§ the seriousness of the alleged offence;
§ the age, apparent maturity and mental capacity of the child;
§ the available alternatives to prosecution and their likely efficacy;
§ the sentencing options available to the court if the matter were to be prosecuted;
§ the family circumstances and, in particular, whether the parents appear willing and able to exercise effective discipline and control of the child;
§ the child’s antecedents, including the circumstances of any relevant past behaviour and of any previous cautions or youth justice conferences; and
§ whether a prosecution would be likely to cause emotional or social harm to the child, having regard to such matters as his or her personality and family circumstances.
It should be noted that in 1990 the Australian Government agreed to be bound by the United Nations Convention on the Rights of the Child (see Appendix G), article 3.1 of which states:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.