In the Netherlands, children below the age of 12 are considered too young to be held responsible for breaking the law. The United Nations Convention on the Rights of the Child calls upon states parties worldwide to establish a minimum age "below which children shall be presumed not to have the capacity to infringe the penal law". The UN Committee on the Rights of the Child recommends states to set this minimum age at 12 or higher. There is a continuing debate about this age limit and the determination of the appropriate age (see e.g. CRIN 2013). Often this debate tends to arise when exceptional cases involving children who have committed serious offences are given prominent coverage by the media.

The Council for the Administration of Criminal Justice and Protection of Juveniles (Raad voor de Strafrechtstoepassing en Jeugdbescherming; hereinafter: The Council) is an independent advisory body to the Dutch Government established by law. The former State Secretary for Security and Justice has requested the Council to prepare an advisory report on raising the minimum age of criminal responsibility.

The Council has conducted a comprehensive study on the question whether, in light of a fair and effective approach towards juvenile delinquents, it would be desirable to raise the minimum age of criminal responsibility. The findings prompted the Council to examine how young people whose behaviour transgresses moral standards and who consequently come into contact with criminal law are dealt with in the Netherlands. The scope of study, therefore, was not merely limited to an analysis of the arguments in favour and against raising the minimum age. A comprehensive literature study, interviews with professionals and assessments among administrators and experts in the field of juvenile justice form the core of the study.

The study and recommendations were recently presented to the Ministers of Justice and Security, Health, Welfare and Sport, and a representative of the Association of Netherlands Municipalities (VNG). The study was debated in Dutch Parliament on 15 March, 2018.

Raise the minimum age of criminal responsibility to at least 14 years.

As mentioned before, the Council has focused on the question whether it would be desirable to raise the minimum age of criminal responsibility, currently 12 years, in light of a fair and effective approach towards young people in conflict with the law.

The Council considers legal certainty as a decisive argument for setting a clear minimum age limit. It also concludes that the culpability of criminal behaviour by young people depends on the development of the individual child. Victims’ interests matter and should be given due weight, but the Council observes that one can also take care of these interests outside of the criminal law framework. Furthermore, under Dutch civil law parents are liable for damage caused by children until the age of 14 years of age, which could justify a higher minimum age of criminal responsibility, according to the Council.

The Council has based its conclusions on the following three key findings:

1. Under the Convention on the Rights of the Child (UN CRC) states parties, including the Netherlands, are legally bound to establish a minimum age ‘below which children shall be presumed not to have the capacity to infringe the penal law’. The UN Committee on the Rights of the Child recommends that the minimum age should be at least 12 years, but preferably higher (see General Comment No. 10, para. 30ff).
2. Juveniles qualify for criminal prosecution only if they are competent and capable of grasping the consequences of their own actions. From a development perspective, the culpability of young people’s behaviour depends on the development of the brain and the related development of functions, such as the ability to assess the consequences. Scientific insights regarding children’s development suggest that a higher age limit should be preferred, although it remains difficult to pinpoint the exact preferable age limit.
3. A minimum age should reflect the age at which a young person understands what happens during criminal proceedings and which interests are at stake. Individual juveniles who are involved in criminal proceedings should at least understand what they can expect during these proceedings. They must in other words be able to participate effectively during criminal justice proceedings. This implies that a young person must have adequate knowledge and (general) understanding of the nature and content of criminal proceedings and the potential repercussions. It would be unfair to allow individuals to be involved in criminal proceedings that they do not understand, which could essentially boil down to a violation of the right to a fair trial as protected under Article 40 of the UN CRC and Article 6 of the European Convention of Human Rights (see further Rap 2013). The Council concludes that only young people who are at least 14 years or older can be considered capable of understanding the implications of criminal justice proceedings.

The Council has therefore recommended to raise the minimum age of criminal responsibility from 12 to at least 14 years.

Outline on raising the minimum age of criminal responsibility; the importance of proper youth care.

The Council has underlined, though, that, voluntary or involuntary, youth care and assistance for children up to the age of at least 14 years should be preferred; criminal justice interventions should be regarded as a last resort. The Council has also expressed its concern about the quality of the current child protection and youth care system in the Netherlands. It has subsequently concluded that raising the age of criminal responsibility requires an investment in the youth care system at the same time. Despite the existence of knowledge on effective youth care systems and programmes and the availability of evidence-based interventions, further investments are needed to ensure that children and their families can benefit from these systems and interventions, including the children of twelve and thirteen years of age who will no longer be dealt with in the context of criminal justice if the age were to be raised.

The challenge according to the Council is not just how to deal with children in conflict with the law and at what age, but also how the Dutch government should deal with these young people after and, more importantly, before they commit an offence.

In February 2018, Denise Verkroost posted a Leiden Law Blog on the first evaluation of the Dutch youth care system with some profound parallel questions on the Dutch Youth Act: How should the legal position of children and parents, as well as the responsibilities of the professionals be improved? Answers to all these questions concerning the most vulnerable children in our society must be seen in the interface between criminal, administrative and civil legal systems.

Note: The authors have been involved in the drafting of the Council’s advisory report as advisor and member of the Council, respectively.