Psicofarmacología de la anorexia nerviosa

The basic premise of the Convention is that a ‘child’ is born with fundamental freedoms and inherent rights available to all human beings but with specific additional needs in recognition of a child’s cognitive, emotional, social, moral and physical competencies drawn from the social, cultural, economic and emotional environment that they are in.

A child faces a range of aged based criteria that govern various aspects of their lives at which they are deemed capable of making decisions for themselves, decisions with adult consequences for example to enter into contracts,44 _{become a company} director45 or become a soldier.46

43 _{Child marriages were not abolished in the Child (Amendment) Act 2016. The Women, Family and}

Community Development deputy minister reported in Parliament that there were 9,061 child marriages recorded over the last five years: Hansard 19 May 2016, col 1120-11300. Available at:

<http://www.parlimen.gov.my/files/hindex/pdf/DR-19052016.pdf > [13 Nov 2016].

44 _{Section 11 of the Contracts Act 1950 read together with the Age of Majority Act 1971.} 45 _{Section 196 (2) Companies Act 2016.}

46 _{Section 18 (4) Armed Forces Act 1972, which however states that a recruiting officer shall not}

enlist any person under the age of seventeen and a half years without the written consent of his parents or of his guardian.

84 The assumption upon which the age-based criteria are set is on the basis that

children lack the capacity to take responsibility for decisions and the minimum age requirement ensures that the child is protected. This of course rests on a further assumption that the adult’s perception of the child’s competence is the right one and that such an assumption is accurate. A final assumption made is that the needs of the child mysteriously cease or change when a child attains a specific age. Clearly as seen in the section above, the age based criteria used in defining a ‘child’ leads to rather confusing positions.

As briefly considered above, the minimum age of criminal responsibility in Malaysia (save where Islamic law is concerned) is set on an age-based criteria. Thus, the age of criminal responsibility as stated in the Section 82 and 83 of the Penal Code

is ten. The code includes a doli incapax presumption, which states that children between ten and below twelve who have not shown sufficient maturity may be

(emphasis added) absolved from criminality as well (of the Malaysian Penal Code). This means that children under ten cannot be arrested or charged with a crime. Children between twelve and seventeen can be arrested and taken to court if they commit a crime but, as discussed above, are entitled to be dealt with by youth courts. However as noted above, there can be complications particularly where the criminal offence involves a capital offence.

As noted previously, the CRC does not prescribe a specific age for criminal liability, but merely states that the beginning of that age shall not be fixed at too low an age, and should be based on children’s emotional, mental and intellectual maturity. However, in considering the Malaysian context, the UN Committee on the Rights of the Child in its concluding remarks noted with concern the low minimum age of criminal responsibility, which is ten years in the Penal Code. It also noted the discrepancies between the minimum age standards in the Penal Code, the

interpretation of the Muslim jurists in the Syariah Court and the Syariah Criminal Procedure (Federal Territories) Act 1984 (United Nations, 2007a).

Thus, a child as young as 12, who is said to be in need of special safeguards, care and assistance owing to his or her physical, mental and emotional immaturity, may

85 find themselves in the adult criminal justice system and subject to its most severe penalties. There is a greater risk that a child in conflict with the law who faces an adult administered criminal justice systemcan be exposed tosevere emotional and

psychological stress (Drizin and Leo, 2004). As noted in Chapter 2, the basis of setting an arbitrary age of criminal responsibility is argued to lead to the ‘adultifying of children aged 10 years’ and a ‘mutation of justice’ (Goldson, 2013:126).

There are variations across the globe in determining the minimum age of criminal responsibility. A 2011 report indicates that in at least 142 states, children may be taken to court for criminal acts at an age between 6 and 15 and of these, 31 states impose a minimum age of criminal responsibility at 7 (Melchiorre and Atkins, 2011).

An alternative view suggested is to consider the principle enshrined in Article 5 in which the CRC acknowledges the ‘evolving capacities’ of the child which recognises that children will acquire competencies at different ages, and their acquisition of competencies will vary according to the environment and culture in differing life experiences. Acknowledging this recognises that children require ‘varying degrees of protection, participation and opportunity for autonomous decision-making in different contexts and across different areas of decision-making’ (Lansdown, 2005:3).

Children in the juvenile justice system are not ‘just little adults nor is the world in which they live in the world of adults’ (McCord et al, 2001:15). A similar view was expressed by theSupreme Court of the United States in Roper v. Simmons (543 U.S. 551, 2005). In deciding that the sanction of capital punishment was unconstitutional47 for crimes committed by individuals younger than 18 years of age, the court

concluded that juveniles differ from adults in three significant ways.

Firstly, on the basis that juveniles lack maturity and have an underdeveloped sense of responsibility that are not often found in adults and understandably so and these qualities often result in ‘impetuous and ill-considered actions and decisions.’ Secondly, juveniles are more vulnerable or susceptible to negative influences and

47 _{For a brief review of the historical development of juvenile capital punishments in the United}

States, see Byrd, J. (2006). Constitutional law & (and) criminal law. University of Arkansas at Little Rock Law Review. 29(1):119-164.

86 outside pressures, including peer pressure owing to the fact that juveniles have less control, or less experience with control, over their own environment. Lastly, that the character of a juvenile is not as well formed as that of an adult resulting in transitory personality traits and these factors taken together result in the diminished culpability of juveniles (per Justice Kennedy).

Hence, there is a general move towards a higher age of criminal responsibility based on broader medico-legal perspectives recognising the concept of a development continuum understood through the development of neuroscience (Delmage, 2013). A singular test of capacity based on adult determined arbitrary age fails to engage with a variety of complex issues that make up the factors that influence a child’s behaviour, these include cognizance of the child’s stage of psychological development, and his/her lived experience (McDiarmid, 2013). This is particularly so since ‘the social brain and social cognition undergo a profound period of development in adolescence’ and this period represents a particularly sensitive period for the processing and acquisition of sociocultural knowledge (Blakemore and Mills, 2014:201).

Much of this argument corresponds with neurological research that seeks to apply various technological advances to understand the adolescent brain. A range of studies (Furby and Beyth-Marom, 1992; Cauffman and Steinberg, 2000; Spear, 2000; Sowell, 2003; Gogtay et al., 2004) indicate that the development of the human brain is organic and that organic development is most pronounced during adolescence. These studies connect the state of the development of the brain48 _{to corresponding behavioural or} emotional tendencies unique to the adolescentwhich impact planning, decision making, impulse control or reasoning (Giedd, 2004). As the adolescent enters adulthood, there is evidence of pruning of areas in the frontal lobe (Sowell, 2001). Gardner & Steinberg, (2005) suggesting that fluctuations in the growth of the frontal lobe are likely to cause an adolescent to be lacking in foresight, have poor impulse control, to be driven by emotions, and be susceptible to peer pressure. Perhaps more importantly is the fact that an arbitrary age set ignores the fact that there are

87 fundamental differences in brain activity between individuals (Mohr and Nagel,

2010).

A report by the Royal Society concludes that ‘it is clear that at the age of ten the brain is developmentally immature and continues to undergo important changes linked to regulating one’s own behaviour’ and that ‘the evidence of individual differences suggests that an arbitrary cut-off age may not be justifiable’ (Royal Society, 2011:14). Thus, the present age of criminal responsibility in Malaysia has a direct bearing on the notion of a child in conflict with the law and his/her engagement with the criminal justice system. There has been evidence to suggest thatthe majority of adolescents who engage in criminal behaviour will do so during adolescence and at no other period of their life, an ‘adolescence-limited’ behaviour (Moffitt, 1993:676). Thus, introducing diversionary strategies while still maintaining an arbitrary lower age of criminal responsibility, presents a philosophical paradox about dealing with a child in conflict with the law.