The State as Parent: Juvenile Crime and Parental Restitution

Article excerpt

There has been a relatively recent emphasis placed on the role of parents and guardians in juvenile crime management. An increasing number of family group conferences, curfews, community panels and an assortment of family-based crime prevention projects have sought to co-opt or coerce families into the crime control culture.(1) Parents have been urged to exercise more effective care and control of their children in order to prevent or curtail juvenile offending. When children and young people do offend it is the parents and guardians who are blamed for failing to discharge their responsibilities of care and control. Under current legislation, the criminalisation of a young offender may require parents and guardians to `show cause' as to why they should not be for the offences of their children. Parents may be further required to engage in practices that secure the `reintegration' of the young person `back' into the confines of the community.(2)

In many ways there is little that is new about this. The state has long attempted to establish `the family' as one of the major sites of juvenile crime control and to punish parents when their children offend. Yet at a time when public policy is increasingly deploying the rhetoric of individualism and the logic of the `market', as well as restraining public expenditure in a wide range of state services, there is a case for examining afresh the way the state exercises its own responsibilities when it undertakes the care and guardianship of children and young people. Emphasising the role and moral responsibilities of the family in `civil society' does not in itself negate close scrutiny of the state's responsibilities in respect of those children placed in its care.(3) Indeed, it is precisely because the state removes children from families and other situations in order to offer better protective care and supervision that an analysis of its practices is warranted. Creating a `minimal state' in which families exercise `self reliance', `self regulation' and `responsibility' may be a popular idea for some,(4) but governments cannot avoid searching questions about their own role as custodians acting in loco parentis of children and young people.(5)

The issue of state responsibility for young people in its charge has been highlighted by recent legislation providing for parental restitution. In this article we identify legislative provisions in a number of Australian states where parental restitution orders can now be imposed on parents in cases where `wilful neglect' is identified as a key cause of a child's offending. It becomes clear that there are discrepancies between the laws imposed on the parents and guardians in civil society and those accepted by the state in its capacity as the responsible parent/guardian. As we demonstrate below, the obligations, responsibilities and sanctions currently being placed on parents and guardians have not been equitably applied to the state when it assumes the role of parent.

We consider the implications of the state's unilateral exemption from the recent parental restitution legislation in respect of children and young people placed in care. Doubtless, those who framed the recent legislation had in mind cost-containment arguments. There is also the long standing convention derived from archaic constitutional legal discourse that the crown is above the law. However these arguments pale into insignificance against the long-standing ethical expectation found within the liberal contractarian tradition, that governments are required to balance the protection of citizen's rights against obligations placed upon all citizens.

Given the evidence of declining and/or questionable standards of service delivery in most if not all state-run systems of care and protection, the state should also be subject to such laws if the rights of state wards are to be protected.(6) Further, the constant stream of evidence highlighting the patterns of mistreatment, neglect and abuse of young people and the chronic violation of young people's basic rights to care and protection, illustrates further the need for the state to be fully accountable for its conduct or at least in terms consistent with the expectation it places upon parents in civil society. …