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Child Victims and Restorative JusticeA Needs-Rights Model$

Tali Gal

Print publication date: 2011

Print ISBN-13: 9780199744718

Published to Oxford Scholarship Online: September 2011

DOI: 10.1093/acprof:oso/9780199744718.001.0001

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Victims to Partners

Victims to Partners

Child-Inclusive Restorative Justice

Chapter:
(p.163) 6 Victims to Partners
Source:
Child Victims and Restorative Justice
Author(s):

Tali Gal

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199744718.003.0006

Abstract and Keywords

This chapter translates the ideas and theories presented in previous chapters into practical methods within a restorative justice framework. Needs are linked with correlated rights, creating clusters that indicate the interrelationships between them and generate principles for action in restorative justice settings. The Best Interests cluster calls for individual assessments of the short and long term needs of the child, and tailoring the reparation plan according to the child's specific needs. The Control cluster suggests the creation of diverse participation options and participation-enhancing techniques (including child representation). The Procedural justice cluster requires equal access to restorative justice programs for all child victims, including those with special needs. Finally, the Protection cluster calls for age-appropriate information and process, effective monitoring following the process, and safety as a precondition and a central goal of the process. The chapter ends with a set of eight heuristics, offering a starting point for the establishment of child-inclusive restorative practices.

Keywords:   heuristics, needs-rights, child inclusive, restorative justice, best interests, participation, control, procedural justice, protection

Introduction

As discussed in the previous chapter, restorative justice has gained popularity in the past two decades as either an alternative or a complementing practice to the criminal justice process. Child victims have been involved in such processes in many parts of the world, such as New Zealand (Morris, 2002a), Australia (Ban, 2000; Daly et al., 2003; Strang, 2002), the United States (Merkel-Holguin, 2000; Pennell & Weil, 2000), Canada (Pennell & Burford, 1996, 2000b), and the United Kingdom (Dalrymple, 2002; Marsh & Crow, 1996). While child victims have not been the focus of evaluation studies on these programs, still the existing data reveal that young children can take part in such processes, their satisfaction can be high, and their safety and wellbeing can be enhanced through the process.

The generally positive results of restorative practices from a child victim’s perspective reviewed in Chapter 5 make it an attractive alternative to the criminal justice process. Chapter 5 also showed, however, that restorative justice can harm children. Therefore, it would be wrong to include child victims in the “routine” practice of restorative justice. Rather, it might be appropriate to create specific programs for child victims, and perhaps special programs for specific crimes against children (i.e., family and sexual abuse), to enable adequate training, facilitation, and investment that will produce safe and successful processes for children of various ages. In crafting such programs, a needs-rights approach can maximize their success and minimize the risks to children. A systematic implementation of the needs-rights model offers some subsidiary principles for action for child-inclusive restorative justice programs. This is the subject of this chapter.

Accordingly, this chapter translates the ideas and theories that were presented in previous chapters into practical methods within a restorative justice framework. Rights (Chapter 2) and needs (Chapter 3) are connected to principles for action. Earlier in this book, the Convention’s four guiding principles of best interests, equality, participation, and the right to life, survival, and development, adjoined the right to be protected from abuse and neglect, and the right to rehabilitation and reintegration, and formed a human rights framework for child victims. To convert these human rights into practical principles and produce a holistic model, however, findings from the psychosocial literature regarding the needs of child victims were integrated. Following the model presented in the end of Chapter 3 (see p. 83), these two disciplines were connected to create a combined needs-rights model. Related needs were (p.164) linked with correlated rights to create clusters that indicate the interrelationships between them. In this integrated model the human rights principles provide the normative aspirations and identify areas that should be explored empirically. The psychosocial findings support (or potentially negate) the linked normative arguments, and help translate the general norms into principles for action.

These principles for action are more specific than the human rights principles presented in Chapter 2, but they are sufficiently broad and flexible to be interpreted in different ways in various cultures, programs, and contexts. Hence, they should be regarded as subsidiary, instructional principles rather than a list of specific requirements.

For example, the literature on control is indicative of the importance of active participation and perceiving the situation as controllable for the wellbeing of victims (Frazier, 2003; Herman, 2003; Thurber & Weisz, 1997), while warning against forced participation of children (Murray, 1999) and token inclusion of children when in fact they have no input on the outcomes (Langer et al., 2005). Together with the normative principles of participation, rehabilitation, and best interests, it emphasizes the importance of treating child victims as partners. Other examples are studies discussing the importance of support of family and friends (Call & Mortimer, 2001; Morgan & Zedner 1992, p. 169), acknowledgment of harm (Herman, 1992), and validation of the victim’s behavior (Ahmed et al., 2001, p. 191) in promoting the wellbeing of the victim (or his or her best interests, development, and rehabilitation, to use the Convention’s terminology). Similarly, studies identify the rehabilitative and adaptive potential of receiving an apology and forgiving and the ability of children, even young ones, to appreciate both (Darby & Schlenker, 1982; Enright & Kittle, 2000; Petrucci, 2002). Finally, some studies discuss children’s coping mechanisms and reactions to crime from a developmental perspective (Finkelhor & Kendall-Tackett, 1997; Seiffge-Krenke, 1995), thereby illuminating the varying needs across childhood.

While relying on international norms on the one hand and on psychosocial literature on the other, many of the practical methods of realizing the rights of child victims are drawn from positive experiences of restorative justice initiatives involving child victims, such as those discussed in Chapter 5. Others are adapted from the criminal justice context, including UNICEF’s guidelines for the International Criminal Court (see p. 116) and the United Nations Model Law for involving child victims and witnesses in criminal proceedings (UNODC and UNICEF, 2009) (see p. 117).

The first four sections in this chapter discuss the subsidiary principles for action that might be derived from the needs-rights framework. Each section relates to one of the four “clusters” of the model, presented in Chapter 3: best interests, control, procedural justice, and protection. Grouping the model’s elements into clusters seems to be more appropriate than an individual matching of each human rights principle with suggested principles for action, because of the indivisibility of the human rights principles and the arbitrariness of such an individual matching. In the figures drawn to illustrate each cluster, each oval in which the subsidiary principles are articulated should be seen as “floating” and “connecting” in the vicinity of the human rights principles and psychosocial needs included in the corresponding cluster, while still having some ties with the other parts of the complete needs-rights model.

The final section of this chapter proposes a set of eight heuristic principles that, if followed by professionals, are likely to produce reasonably satisfying child-inclusive restorative practices. A child-inclusive process is, arguably, one that regards children as active, equally respected partners in it. It does not mean that children participate in the (p.165) same manner that adults do, nor does it suggest that children are simply included in it. Rather, instead of being treated as passive objects of the discussion, children involved in such a process are treated with respect, and can exercise their human rights in it in a way that suits their best interests and wishes. At the same time, a child-inclusive approach is not identical to a child-centered approach, a phrase often used in child protection discourse. The latter, while being a vague concept, suggests that children’s interests are the only criteria for decision making, or at least the central and trumping ones. In the context of justice mechanisms, however, other interests exist, such as those of the perpetrator to a fair trial, and should not be understated. Although the best interests of the child should have primacy (as required by the Convention), it is acknowledged that other interests, such as those of defendants (and victimized women when domestic violence is an issue), are also vital and must be guaranteed as well. This could be especially true when the perpetrator is also a child, and therefore deserves equal protection of the human rights provided in the Convention. Accordingly, a child-inclusive approach realizes the existence and importance of other stakeholders and at the same time reflects a respectful, rights-based attitude toward child victims.

The following section, then, discusses the bottom part of the needs-rights model: the best interests cluster.

The best interests cluster of subsidiary principles

As explained in Chapter 3, the best interests cluster includes the best interests, rehabilitation, and development human rights principles, as well as psychosocial findings regarding paths to promote the wellbeing of child victims such as support networks, acknowledgment of harm, validation of behavior, and material reparation. While the best interests principle is a broad, perhaps vague term, rehabilitation relates to the long-term wellbeing of children and development relates to the changing interests of children as they age. All elements of this cluster, then, associate with different aspects of children’s wellbeing. Figure 6.1 demonstrates the subsidiary principles for action that derive from the best interests cluster.

Starting from the best interests principle itself, perhaps its most important contribution as a human rights principle is the obligation it creates for decision-makers to consider the individual needs of each and every child under their authority (rather than relying on general assumptions about “what’s best for children”) and to give primacy to these specific considerations.

In the restorative justice context, to ensure that the best interests of the individual child are given primacy, a thorough assessment should be conducted prior to any such process, to verify its appropriateness in the particular circumstances. Most importantly, it is vital to explore (1) whether there is a risk of victim blaming and manipulation during the process; (2) whether the victim is prepared to have a direct encounter with the perpetrator, and if so, what measures can be taken to secure the child’s wellbeing during the encounter; (3) whether there is adequate support for the victim; (4) whether there is a high probability of a convincing safety plan; and (5) whether there is a high risk of revictimization by the process. Additionally, the timing of the conference, its location, and the list of invitees should be designed with the (p.166)

                   Victims to PartnersChild-Inclusive Restorative Justice

Figure 6.1 The best interests cluster: subsidiary principles for action in restorative justice settings.

interests of the child in mind. Finally, the outcomes of the process should promote the best interests of the child. Accordingly, it should at a minimum ensure the safety of the child, include reparation (material, symbolic, or both) that meets the specific needs and wishes of the child, and strengthen the child’s support system.

Clearly, some of these subsidiary principles also derive from rehabilitative (such as reparation) and developmental (such as readiness to confront the perpetrator) considerations. The best interests principle, however, includes a “formula” for balancing the child’s interests with the interests of others, namely the “primary consideration” formula specified in Article 3(1) of the Convention. Therefore, it is useful, at least in the context of this cluster, to use it as a general provision, while filling it with more specific rehabilitative and developmental content through the other principles.

Although the best interests principle is ostensibly simple to accept, it would be naïve to assume that its practical application is without problems. In particular, other important interests may compete with the child’s interests, such as the perpetrator’s. For example, the child’s interest to have only the offender present at the process without his or her support group contrasts with the offender’s interest (although the child’s true interest might actually be having the offender’s support group present, because only then can the offender feel shame, take full responsibility, and suggest a comprehensive restoration plan). Deciding on a large amount of restitution might help the child get therapy but might delay the offender’s rehabilitation due to financial stress (although, again, the offender’s extended family, if included in the process, can make arrangements to secure the interests of both sides in this regard). Does the best interests principle suggest that other interests should be ignored? Clearly, the answer is no. The competing interests need to be discussed and negotiated, with special attention given to those of the child. No magic solution exists, but arguably restorative justice provides (p.167) space for an open, respectful negotiation where creativity, initiative, and involvement of supporters might lead to resolutions that jointly promote the interests of victims, offenders, and the other stakeholders. A final example arises in the context of children witnessing domestic violence. What should be decided regarding contact arrangements between the abusive father and the child, assuming the child wants such contact? A strict children’s rights approach might lead to a decision that contact should be secured for the interests of the child, as long as his or her safety is secured, even if that prevents the mother from relocating or taking other measures to secure her own safety. But as the analysis of the Convention’s provisions in Chapter 1 suggested, the best interests principle should be understood broadly, highlighting the shared interests of children and their abused mothers. An outcome plan addressing the mother’s safety (for instance, residing temporarily at a relative’s home) may promote the child’s interests in the wider sense even if that means not seeing the abusive father for a while, because it will improve the mother’s wellbeing and strengthen the child–mother relationship (Schechter & Edleson, 1999, p. 19).

Beyond individual considerations regarding specific children and their circumstances, the best interests cluster is also helpful in providing guidance about which process is most suitable for the short- and long-term wellbeing of children. It suggests that authorities are obliged to give primacy to children’s wellbeing when crafting new child-inclusive restorative justice programs and when choosing the most suitable type of process for discussing crimes against children. Restorative conferences and circles are designed to bring together the support systems of victims and offenders, thus helping empower vulnerable stakeholders (Bazemore & Earle, 2002; Pennell & Burford, 2000a). More specifically, Chapter 5 demonstrated that family group conferences have had considerable success in discussing all family-related crimes, including domestic violence and sexual abuse of children. Conferencing was the process chosen and conducted in Newfoundland and Labrador (Pennell & Burford, 1995, 2000b), New Zealand (Morris, 2002a), the Australian Capital Territory (Strang, 2002), and South Australia (Daly et al., 2003). Traditional dyadic mediation, in contrast, does not include the support circles of either victims or offenders, and might expose the victim to unsafe and unbalanced situations (Busch, 2002). It seems, therefore, that the best interests cluster indicates a preference for programs that bring together victims, offenders, and their supportive communities, such as conferencing or community circles. Further evaluations, however, are needed of the latter, to address the concerns raised in regard to them, especially in cases of family violence (Dickson-Gilmore & La Prairie, 2005; Frederick & Lizdas, 2010; Goel, 2000; Stubbs, 2010).

In addition to the choice of process, the wellbeing of child victims should be a central consideration in the training, program protocol, location, and physical design of the program. For instance, programs should consider the age of their target population in choosing and designing the physical environment of the restorative process. Children should feel comfortable and have age-appropriate activities to engage with when necessary while the process takes place.

The best interests cluster also implies that accepting material restoration from the offender is important for victims’ rehabilitation (Strang, 2002; Strang & Sherman, 2003; Zehr, 1990). Considering the developmental and rehabilitative normative principles, it is important that reparation agreements represent, when feasible, the lifetime consequences of childhood victimization. As discussed in Chapter 3, however, special attention should also be given to the child’s specific wishes and material needs.

(p.168) Another subsidiary principle deriving from the best interests cluster is that state authorities should foster the healthy development of children. Therefore, not only are restorative processes obliged to promote the emotional and physical healing of the child through the process outcome, but the process itself should be seen as providing an educational and developmental experience for the child. In particular, the value of active participation should be understood in a developmental context as well as an independent right. Indeed, Chapter 2 showed that providing children with opportunities to participate in decision-making processes enhances their development by promoting their negotiation skills, ability to express their views, self-esteem, and sense of belonging (see p. 44).

In sum, the short- and long-term interests of children should be the cornerstone of every child-inclusive restorative justice program, not only in its preliminary design, but in the application of the process with each and every child as well. When involving child victims, it is important to consider their age-specific needs and vulnerabilities. Therefore, the process should be designed according to the child’s level of development and wishes, to maximize its rehabilitative potential for the child, and the reparation agreement should be tailored to the child’s specific circumstances. Fortunately, one of the features of restorative justice is the ability to apply flexibility and creativity in its implementation, as long as it is based on the wishes and interests of the specific participants and does not violate their human rights.

The control cluster of subsidiary principles

The control cluster presented in Figure 6.2 demonstrates the interconnections between children’s participation and their short- and long-term interests. Development, however,

                   Victims to PartnersChild-Inclusive Restorative Justice

Figure 6.2 The control cluster: subsidiary principles for action in restorative justice settings.

(p.169) is also salient in constructing forms of participation since there are significant differences in the emotional, cognitive, and social capabilities of children of various ages in engaging in shared decision-making processes. Findings regarding these developmental changes are relevant and important. Accordingly, despite the temptation to use a symmetrical model of four relatively even clusters, development was integrated into this cluster, in addition to its position in the protection cluster (see p. 179) and the best interests cluster (see p. 166).

Participating in restorative conferences is not only a right of children; often it might contribute to their short- and long-term wellbeing or, in other words, promote their best interests and rehabilitation. The psychosocial literature presented in Chapter 3 reveals the rehabilitative effects of a safe, open encounter with the perpetrator whereby the victim can ask questions and receive answers about the crime (Zehr, 1990), hear the perpetrator’s perspective (Lazarus, 1999; Murray, 1999), receive a sincere apology and grant forgiveness (Bibas & Bierschbach, 2004, p. 113; Enright & Fitzgibbons, 2000; Enright & Kittle, 2000; Taft 2000), discharge shame (Ahmed et al., 2001, Chapter 17), and resolve self-blame (Herman, 1992, pp. 68, 199; Zehr, 2002). These typically cannot occur (or cannot be effective from the victim’s perspective) without the victim’s own participation. Restorative justice provides such opportunities where the victim, the offender, their supporters, and a facilitator meet together in a process that fosters partnership, respect, and nondomination.

Angel’s 2006 findings regarding the positive mental health impacts of restorative justice provide evidence of the rehabilitative power of such processes. Based on her findings regarding reduced post-trauma symptoms among conference victims compared with court victims from randomized controlled trials in Australia, the United Kingdom, and the United States, Angel claims that although restorative justice conferences are typically a single event, they may be sufficiently powerful to have a similar effect to that of multiple cognitive behavioral therapy sessions.

While these findings have not included child victims, they provide a first therapeutic jurisprudence account of the relationship between the mental health of victims and their participation in restorative justice processes that follow their victimization. Clearly, it is important to conduct similar studies on child victims to explore whether such direct encounters hold the same potential for children. The existing psychosocial literature, however, makes a sufficiently strong argument for careful experiments with safe, supportive, and open encounters between child victims and their perpetrators in order to test whether these encounters promote emotional healing and rehabilitation as they do for adult victims.

In any case, findings regarding child victims’ need for a sense of control and need to be empowered, listened to, and respected (Graham & Fitzgerald, 2005; Melton & Limber, 1992; Stafford et al., 2003) demonstrate both the potential of restorative justice and the great challenge it presents when applied to child victims. On the one hand, restorative justice treats victims, offenders, and their affected communities as partners in the search for an appropriate reaction to crime. At the same time, considering children’s limited experiences and evolving communication skills, involving children in restorative justice settings requires some special arrangements. Although children as young as 3 and 4 are potentially capable of expressing their views, intentions, and difficulties (Smith, 2002), a child-inclusive restorative justice process needs to find ways of involving children as partners in the process, in accordance with their specific age, needs, abilities, and wishes. Adults also need to develop their ability to listen to (p.170) children and understand their messages. Furthermore, it is important to be attentive to children and respect their views not only during the process but also before it, while making the decision regarding the form of participation.

One example of seeking young children’s viewpoints is the “Storycrafting” method, developed by the Finnish organization STAKES. Storycrafting is suitable for 1- to 6-year-old children and was found to be effective in bringing out children’s thoughts and viewpoints (Riihelä, 2001, 2002). According to the method, the child is asked to tell a story. The adult promises to write the story using the child’s exact words while the story is told. The adult further reassures the child that there is no right or wrong story, that he or she is simply interested in hearing the child’s thoughts and feelings. When the child is done, the adult reads the story to the child, and any corrections or changes the child makes are integrated into it (Riihelä, 2002, p. 7). The success of the method in improving communication between young children and adults, including regarding painful matters such as divorce, was explained by Riihelä (2001, p. 2) as follows:

Oftentimes the situation loses its meaningfulness from the child’s perspective because the adults ask the children about things they already know about. This is why the children in some way have to be told, that “Everyone has their own way of thinking. I am interested in how you think. Since I am the other person I cannot know your way of thinking.” Once a child said to me with a surprised expression: “You mean you are interested in what I’m thinking?”

Since 1995, Storycrafting has been used in numerous Finnish municipalities and adopted in other Nordic countries. It was accepted in 1999 as a preferable therapeutic method in the European Network on Promoting Mental Health for children aged 0 to 6 years (Riihelä, 2001, p. 4).

There is no evidence that Storycrafting is as effective in the context of child victimization and restorative decision-making processes. Nonetheless, it demonstrates how, with creativity and awareness of children’s own perspectives, it is possible to understand their worlds better than when using adult-oriented methods. This method can perhaps be tested with very young child victims as a way to achieve their meaningful participation without having them present at the conference itself.

While participation might have a powerful rehabilitative role, it is important to remember that forcing children to take control may be sometimes experienced as dominating them yet again and could interfere with their healing journey (Murray, 1999). Therefore, participation should always be considered together with the wellbeing of the child. Whichever the chosen form of participation, being treated as a partner in the process means also receiving ongoing information about its progress, in a way suitable for the child’s level of development and understanding.

As mentioned earlier in this section, developmental findings are central in the discussion of children’s participation. A related concept is that of “evolving capacities.” Children develop their capacities constantly and gradually, and their families and surrounding communities need to foster their development by providing guidance while allowing growing freedoms and autonomy.

Accordingly, restorative processes need to be adjusted according to such developmental issues at every stage of the process, and these adjustments should be based on general scientific data as well as individual assessments. Consequently, the preparation of the child and the information given to him or her, the form of participation, the list (p.171) of invitees, the location of the process, and its goals should all be shaped in a way appropriate to the developmental level of the specific child.

The Convention, however, makes it clear that every child who is able to form an opinion (even toddlers can) has the right to have these views heard and considered. In other words, every child has a right to participate in a decision-making process, and the key question is how. A needs-rights approach requires evidence-based findings, as well as specific assessments, before children are excluded from processes regarding their victimization. Indeed, developmental studies have found that 3-year-old children are able to recognize that other people have different viewpoints (Hart, 1992, p. 32; Selman, 1980, p. 132; Smith, 2002, pp. 82–83). Yet other studies have shown the limited intellectual and emotional capacities of children and adolescents, which make them unable to make rational, future-focused decisions (for a review, see Lansdown, 2005, pp. 23–24). One explanation for the different findings might be that developmental studies used experimental designs that take children away from their natural environment, thus inhibiting their true capacities to make rational decisions (Lansdown, 2005, p. 25). Another explanation is that children and young adolescents are perhaps still not ready to make rational decisions on their own, but they are able from a very young age to engage with others in discussions regarding their daily lives. In fact, the differentiation between making decisions alone and engaging in shared decision-making matches the Newfoundland finding that while young victims participated in the process, they were typically not the main decision-makers (Pennell & Burford, 1995, par. 6.5.1).

Whatever the reason might be, the differences between the studies suggest that an individual assessment regarding the capabilities and wishes of the child is necessary in every case, as well as a gradual understanding of the concept of participation. Taking part in the process does not necessarily mean being present at the conference, speaking up, and having an equal voice to the other participants, although this might be the preference for adolescents and some younger children. It can mean, for instance, sending a message through someone else. It might mean being present at the conference without taking an active role in it, or participating in part of it and then leaving the conference room. These are all specific forms of participation that can be tailored according to the specific needs, abilities, and wishes of the individual child. This gradual understanding of children’s partnership fits with Flekkøy and Kaufman’s (1997, pp. 65–67) suggestion to evaluate the appropriate level of participation with regard to each child, balancing his or her best interests and evolving capacities. Indeed, this balancing between developmental and best interests considerations to determine the level and form of participation mirrors the control cluster, which combines these concepts.

Nevertheless, considering the rehabilitative effects of participation and the right to participate, it is essential not to be overprotective of children through allowing “best interests” considerations to trump children’s wishes. Indeed, children often feel overprotected and want to participate in proceedings that adults regard as potentially harmful (Lansdown, 2005, p. 35). More specifically, children expressed a desire to have a voice in family and school matters, including in domestic violence situations (Prout, 2001, p. 198). Marshall (1997) compared the views of child protection professionals with those of children who had had direct experience with the child protection system. She found that children wanted to take part in decision-making processes following child protection events much more than professionals were willing to let them. For example, in a situation where negative attitudes toward the child could be expressed (p.172) during the process, children thought that they would probably hear them anyway, so there was no point in protecting them against such expressions. Children also said that it was not possible to “wrap people up in cotton wool” (Marshall, 1997, p. 74). This finding suggests that professionals are perhaps too often willing to give up children’s “participation” for the sake of their “best interests,” even though the latter might not necessarily be in conflict with the former. Moreover, professionals’ unwillingness to take any risk of an unpleasant process for children could arguably be seen, in some cases, as a defensive organizational strategy to protect themselves from possible accusations, rather than the result of a genuine consideration of potential benefits and risks in each case.

Indeed, experience shows that even very young children are able to be present in restorative justice processes or actively participate in them. In South Australia, 9-year-old victims participated in conferences and generally did well, with adequate preparation and support (see p. 131). In child protection family group conferences in the United Kingdom, children were present in the vast majority of conferences, and some were as young as 5 (see p. 143). Restorative justice processes involved very young children in the school context. For example, 10- and 11-year-old children participated in “Whole School” programs in the Australian Capital Territory (Morrison, 2002), and 5-year-old children participated in restorative practices in schools in Nottingham, United Kingdom (Hopkins, 2002). Children aged 6 and older were involved, with high rates of participation and satisfaction, in school-related family group conferences in Hampshire, United Kingdom (Crow et al., 2004).

Seiffge-Krenke’s (1995) work is an example of a developmental study that can be helpful in designing a developmentally sensitive restorative program. She identified developmental differences between boys and girls of various ages in terms of their ability to actively choose and approach support people in coping with stress. Her findings suggest that children over the age of 15 should be quite free to choose whom to invite to the conference, while younger children should be given more intense help in this regard (see p. 81). This, however, is a general assumption that can be rebutted when a young child exhibits resourcefulness in specifying a large, varying list of supporters, or when an older teenager displays passiveness at that stage.

One of the possible outcomes of a direct and genuine encounter between the victim and the offender is the exchange of an apology and forgiveness. The rehabilitative benefits of receiving an apology and granting forgiveness were discussed in Chapter 3 (see p. 75). It is important to give special consideration, however, to children’s greater tendency to behave according to others’ expectations, especially at certain ages. Thus, there is a need to ensure that children are not pressured to accept the apology or to offer forgiveness. The developmental studies regarding children’s evolving capacities to forgive and accept apologies (Darby & Schlenker, 1982; Enright & Fitzgibbons, 2000; Park & Enright, 1997), as well as their changing propensity to submit to peer or family pressure (Holland et al., 2000; Park & Enright, 1997), can give useful guidance in this matter.

Participation-Enhancing Techniques

Once a decision is made that a child victim will be present and actively participate at a restorative process, it is important to consider participation-enhancing techniques. (p.173) Meaningful participation cannot be achieved simply by allowing children to state their views (Marshall, 1997, p. 75). Certain techniques are required to help children overcome their disadvantage due to age, dependence on others, and lack of experience. The ability to participate in decision making does not depend on cognitive capacities alone. For example, Roger Hart argues that the child’s stage of social and emotional development, cultural and individual differences, as well as motivational barriers, may affect the child’s apparent capacity to participate. Low self-esteem can be a critical barrier to participation, as children can develop coping mechanisms such as being silent and obedient. Accordingly, he claims that enhancing their self-esteem (through, for example, situations where their capabilities come to the fore) may encourage them to speak up (Hart, 1992, pp. 31–33). Indeed, focusing on children’s strengths rather than their vulnerabilities and weaknesses may increase their trust in themselves and enhance their motivation to take an active role in the process. The “note-taker” from Newfoundland (see p. 147) is a good example of a victim who found a way to participate in a manner that made her feel confident and in control.

Additionally, children are often not used to being listened to and taken seriously, and there is no reason to believe they will spontaneously make a meaningful contribution without first enhancing their understanding of the process, their trust in the other participants, and their belief that their views really matter. To gain the child’s trust in himself or herself and in the facilitator, empowerment should start before the conference itself. Thorough, lengthy preparations should include rapport building, assessing the child’s best interests and wishes, constructing the invitees list with the child, deciding on the child’s form of participation, and making the necessary steps to promote it. These not only help the facilitator prepare the conference, but they also set the stage for partnership-based decision making. For example, the most effective methods of ensuring the meaningful participation of child victims in the Newfoundland and Labrador experiment were assigning support persons; providing clear, detailed information about the process; and preparing written statements to help children articulate their views at the conference (Pennell & Burford, 1995, pp. 76, 94, 108–109).

The following points, made by Kathleen Marshall (1997, p. 106), summarize the suggested principles for enhancing children’s participation:

  • The child is prepared and given access to appropriate information.

  • The child is helped in thinking in advance about his or her views.

  • The child should know who will be present, and if there is anyone whose attendance might threaten the child, it should be reconsidered.

  • Measures should be taken to ensure that the procedure meets the needs of the child and that no distressing “surprises” will emerge.

  • Adults should avoid “adult language” and should be aware of the impact their communication will have on the child.

  • During the process someone should be in charge of securing the interests of the child.

  • Toward the end, it is important to make sure that the child understands the agreement fully, and that if he or she has different opinions they are clearly expressed, if the child wishes so.

  • A follow-up is done with the child to make sure he or she understands what happened and to ensure his or her wellbeing.

(p.174) The Sierra Leone Truth and Reconciliation Commission: A Test Case

One example of an effort to promote children’s participation in a restorative process is that of the Truth and Reconciliation Commission (TRC) for Sierra Leone. While not a criminal but a public process of community healing, this experience is significant for giving children’s testimonies centrality in an unprecedented way. Special policies, guidelines, and directions were constructed by a group of national and international experts together with children and under the auspices of UNICEF to promote the safe and effective participation of children as both victims and perpetrators of atrocities in Sierra Leone’s armed conflict during the 1990s (Mann & Theuermann, 2001). According to the guidelines, statements by children should be taken by well-trained personnel, and each child should be accompanied by a social worker, preferably from his or her existing social network. In accordance with the Convention’s evolving capacities principle, the statement-taker and the social worker are required to assess, together, the child’s willingness to testify, the child’s ability to give testimony, the child’s level of understanding of giving a statement to the TRC, and the ability to deal with emotional outcomes of his or her testimony. Instead of setting strict age limits, the guidelines propose grouping children into three categories, which the statement-takers and social workers are expected to consider while assessing these issues: (1) children under 6, who should generally be excluded from the discussion; (2) children aged 7 to 12, about whom a specific decision should be made; and (3) children aged 13 to 18, who are assumed to be able to express their opinions on political and social issues (Mann & Theuermann, 2001, pp. 26–28).

The guidelines for taking statements from children testifying for the TRC provide an exemplary framework for enhancing children’s understanding, participation, and wellbeing in relation to the process (Mann & Theuermann, 2001, pp. 28–32):

  • Preparation: Children testifying for the TRC should receive age-appropriate information about the process, their role, and other people’s roles in it.

  • The environment should be child-friendly. The interview should be held in an informal setting, preferably one familiar to the child. Before starting, children should have the opportunity to familiarize themselves with the place, and some friendly discussion between the participants should take place prior to the formal interview.

  • Methods of expression: Staff should be equipped with alternative measures of communication to assist children, such as drawing and figurative materials, role-play sessions, and so forth. Training should ensure that these techniques are used and then analyzed in an appropriate manner.

  • Listening to children: Children should not be interrupted while talking, and questions should be open-ended. Generally, interviews should not last more than an hour, including a 10-minute break. For children under the age of 12, the interview should be no longer than 45 minutes.

  • Children’s wellbeing: The child’s emotional state should be monitored throughout the session, and if a child seems to need a break it should be provided. The interview should be concluded with an emotional debriefing so that the participants can express and confront their feelings at the end of the session. Follow-up support by the social worker should also be available.

(p.175) These guidelines include some helpful ideas that can be adapted in other restorative justice settings. Naturally, some of the assumptions in the report may be culture-specific, such as the time limitation according to age, and additional guidelines might be required. It is also important to remember the sociopolitical context from which these guidelines resulted: the forced involvement of children in war crimes and extreme crimes against humanity, making them both deeply traumatized victims and violent offenders. Nevertheless, they can arguably be used as a starting point in the development of program protocols.

Another unique contribution of these guidelines is the inclusion of the views of youths while they were being formulated. Importantly, the children thought that the process of telling their stories could be a form of healing, and stressed the importance of providing opportunities for children to practice their right to talk about their experiences. They also emphasized that children should be allowed to express themselves in various forms, including songs, facial expressions, written statements, drawings, and actions. Importantly, they stressed the difficulties children face in expressing themselves when there are adults around, as they are brought up to be silent near adults and not to participate. This provides a challenge to any promotion of the participation of children (Mann & Theuermann, 2001, pp. 43–44).

Certainly, children in other countries and in different contexts may have other ideas regarding their participation in restorative processes. To increase the likelihood that children of various ages feel comfortable in the process, it may be appropriate to include young people in the planning teams of new programs and to ensure their meaningful involvement in program design, similar to Pennell’s (1999) suggestion regarding the inclusion of different community representatives in the construction of new programs.

Child Representation

The Convention’s participation principle explicitly states the right of children to be adequately represented in administrative and judicial processes (Article 12(2) of the Convention). Indeed, an emerging theme in restorative justice experiences involving child victims is the importance of someone representing and supporting the child during the process. This reflects an understanding that the involvement of advocates for victims who are disadvantaged in the process can reduce power imbalances and child silencing during conferences (Bazemore & Earle, 2002).

However, there are different approaches as to who should represent the child and what exactly is to be represented: the interests of the victim, or his or her wishes.

Bazemore and Earle (2002, p. 170) propose, for instance, that in family violence matters victims’ advocates should sometimes represent not only the views of the victim but also the victim’s interests and harms in order to discuss reparation, even when the victim is reluctant to do so. This proposition mirrors beliefs about battered women’s “learned helplessness” (Dobash & Dobash, 1992, p. 220)—the notion that women who routinely experience abuse by their spouses will gradually become passive, will not seek help, and will not cooperate with help providers because they do not believe that anyone can help them escape their all-powerful abusive partners. But the idea that advocates will take over, Bazemore and Earle admit (2002, p. 170), could be seen as manipulative. Furthermore, it can arguably create the very disempowering (p.176) effect that victims’ advocates want to defeat. Child victims witnessing domestic violence or suffering from direct abuse by family members are likely to be in a similar trap, because any intervention by authorities might be perceived by them as either pointless or, worse, dangerous. An active advocate may take the stance the child would not dare to take, but at the same time this “taking over” might create the same sense of domination and control the child has been dealing with at home.

In other words, the representation of children in restorative processes might, instead of enhancing their participation, do just the opposite. It is therefore important to identify ways of helping children participating while not “taking over.” For example, if the victim and the victim’s advocate (or supporter) reach a prior agreement that the advocate will raise issues that the victim feels unable or unwilling to raise, then this strategy might be helpful for the victim.

There are various forms of child representation in restorative justice processes, from support persons who monitor children’s wellbeing and safety, as was the case in the Newfoundland and Labrador experiment (Pennell & Burford, 1995), through appointed counselors, as in South Australian juvenile justice conferences (Doig & Wallace, 1999), adult survivors in family violence cases (Bazemore & Earle, 2002), to barristers/solicitors or lay advocates, as legislated in New Zealand (Children, Young Persons and Their Families Act of 1989). It seems that there is no one preferred model for child representation in restorative justice processes. Involving lawyers in the process could lead to legalistic, adversarial, and disempowering results similar to those that characterize the legal process, and stands against the ethos of restorative justice (Braithwaite, 2002a, pp. 249–250). In particular, the involvement of lawyers in family private time might create a sense of professional dominance over the family and reduce the family members’ sense of safety expressing their views. At the same time, it is possible to argue that children present a special case that justifies the participation of lawyers to ensure that their viewpoints are being adequately considered.

Katherine Hunt Federle (1996) proposes an empowering lawyering model for child representation, under which lawyers who represent children must encourage active involvement of their clients, refrain from subordinating lawyering practices, and be generally aware of and try to minimize the disempowering effect of the lawyer–client relationship. This might be a lawyering style appropriate for restorative justice, and can perhaps be used as a condition for involving lawyers as child representatives in the process (see Braithwaite, 2002a, pp. 250–251, for a similar proposition regarding collaborative lawyering in divorce proceedings).

Conversely, supporters from the victim’s natural environment know the child best and could conceivably offer a less dominating, more democratic form of representation. Family members and friends, however, have their own views and feelings, which might influence their ability to provide an objective representation of the child’s wishes, and can potentially also dominate the discussion instead of empowering the child. Accordingly, perhaps only trained advocates can overcome the power imbalance between young victims and the adult participants and represent the child’s wishes and interests effectively, without prejudice. Further research is warranted to explore the benefits and limitations of each model. Whichever the choice is, the support person or representative should be thoroughly prepared for the role and be sensitized to its challenges.

The Wiltshire family group conferencing project (see p. 158) provides an illustration of the efficacy of child representation in child protection proceedings in the (p.177) United Kingdom. As discussed in Chapter 5, the evaluation study showed that children felt involved and empowered, and their perspectives were made known to both family members and professionals, with the provision of either “natural” or trained advocates (Dalrymple, 2002).

In sum, involving children of various ages and from different familial and cultural contexts in the decision-making process is challenging and requires careful design, thorough training, and intensive individual work with each child. However, a true, developmentally appropriate inclusive process is not only a fulfillment of an important human right of children, but it also increases the likelihood that the process and its outcomes will enhance the child’s wellbeing, rehabilitation, and satisfaction with the process.

The procedural justice cluster of subsidiary principles

As explained in Chapter 3, the procedural justice cluster displays the interrelationship between the human rights principles of equality, rehabilitation, and participation and the concept of procedural justice. While equality in opportunities and treatment and participation in the process are both elements of procedural fairness, rehabilitation is a possible positive outcome of a fair process.

As Figure 6.3 shows, to meet the equality principle (and thus provide fair treatment and equal rehabilitative opportunities), all child victims should have access to restorative justice mechanisms and should be able to expect equal responsiveness to their rights and needs. This means that, as much as resources are available, restorative justice

                   Victims to PartnersChild-Inclusive Restorative Justice

Figure 6.3 The procedural justice cluster: subsidiary principles for action in restorative justice settings (RJ = restorative justice).

(p.178) programs should be located in different areas and should be accessible for all children.

A second aspect of the equality principle is that children with particular barriers or disadvantages should be provided special assistance to equalize their opportunities to participate meaningfully in such processes. The relationship between equality (or lack of it) and participation becomes salient here. It has been suggested, for instance, that children from low-income families would find it harder to actively participate, both because their parents value obedience rather than participation and because they are used to seeing their parents being passive while others make decisions. Therefore, the challenge of “liberating their voices” could arguably be greater (Hart, 1992, p. 33). Similarly, some cultures encourage children to be obedient and subordinate to adults, and this should be considered with participants before and during restorative processes.

It is difficult to believe that a single process can change patterns of behavior and transform silent children into charismatic leaders of discussion. It is important, however, to be aware of these social and cultural barriers and create a relationship based on respect, empathy, and sensitivity with the child. Technical aids might also enhance the participation of disadvantaged children. For example, translators might make children from minority groups feel more comfortable at a restorative justice conference. Special aids might help children with disabilities to overcome their physical, mental, or emotional limitations. Free transportation can potentially make processes more accessible for children and extended families living in isolated communities where programs are not available. Finally, children who are institutionalized should have full access to restorative mechanisms that take into account their difficulties in reporting crimes against them, their particular dependency on staff, special concerns regarding their supporters, and other specific circumstances that make it more difficult for them to participate.

A somewhat different concern emerging from the equality–fairness–participation trio relates to victims whose perpetrators are unwilling to take responsibility and participate in restorative processes, and those whose perpetrators are not found. Are the needs-rights of these victims to equality, procedural justice, participation, and, as a result, rehabilitation, violated? It might be argued that governments can only make restorative justice processes available to child victims and cannot guarantee the willingness of either victims or perpetrators to participate in them. Hence, when the perpetrator is not found or is unwilling to participate in such a process, the child victim is not necessarily discriminated against—but rather, perhaps, simply unlucky.59 Naturally, it is vital to find other ways of promoting the wellbeing, rehabilitation, and participation of children without a known “willful perpetrator.” For example, providing these victims with equal opportunities for restoration and justice might mean having some alternative processes available with their supporters, other victims, or other offenders. Clearly, restorative mechanisms that are not “deliberative” are substantially different and have other effects (Sherman & Strang, 2004), but these can be the best alternative when a fully restorative encounter is not feasible.

Restorative justice, then, needs to be both universal in its accessibility, and diverse in its application, to fulfill the needs-rights of children included in the procedural justice cluster. Clearly, financial limitations pose a serious problem in achieving this goal. Regarding translators, special aids, and free transport for disadvantaged children as (p.179) part of their human rights, however, may generate a change in priorities and increase the accessibility of these mechanisms to all populations.

The protection cluster of subsidiary principles

As Figure 6.4 shows, to understand children’s various vulnerabilities, coping mechanisms, and different reactions to crimes, it might be useful to consider collectively the human rights principles of equality, development, and protection. Indeed, the developmental victimology perspective instructs us that developmental differences as well as special needs and belonging to different population groups affect both vulnerabilities and strengths of children. Gaining knowledge about these issues might help states target the protection of children and reduce the risk of both victimization itself and revictimization during the process.

As discussed in Chapter 2, the right to protection has been interpreted as not only creating an obligation on governments and public organs to prevent childhood victimization to the maximum extent possible, but it also implies the prevention of harms associated with children’s involvement in the process following their victimization. An additional meaning of the protection principle emerges from Finkelhor’s research group (Finkelhor & Kendall-Tackett, 1997; Finklehor et al., 2005). They argue that the consequences of corporal punishment and peer and sibling violence can be as devastating as criminal forms of violence against children, and therefore should be regarded as crimes. Consequently, to fully meet the right of children to be protected from all forms of injury and abuse, states should seek ways to prevent these (often noncriminal) forms of violence and domination as well. Restorative justice can be a suitable platform to address bullying, sibling violence, and noncriminal corporal punishment without criminalizing these acts.

An important question in this context is whether restorative justice is more effective than the criminal justice process in reducing crimes (as well as noncriminal forms

                   Victims to PartnersChild-Inclusive Restorative Justice

Figure 6.4 The protection cluster: subsidiary principles for action in restorative justice settings (RJ = restorative justice).

(p.180) of violence) against children. Current recidivism studies on restorative processes (with mainly adult victims) showed mostly (yet not solely) positive results (Bonta et al., 2002; Braithwaite, 2002b; Latimer et al., 2005; Sherman & Strang, 2004, 2007). However, none of the randomized controlled tests conducted until now has focused on recidivism rates in crimes against children, nor on the most problematic types of such crimes. Of particular concern is the question whether restorative justice can ensure the safety of sexually abused children and those who are exposed to family violence. This lack of data can be addressed only with a foundation of carefully designed studies with randomized control groups involving offenders and victims of such crimes.

It is important to note, however, that restorative justice emerged, among other reasons, because of the unsatisfactory results of the criminal justice system in identifying, prosecuting, and reducing crime. With this in mind (and considering the other positive effects of restorative justice on victims) it is arguable that to prove successful, restorative processes should be merely as effective as the criminal justice process in identifying and reducing crimes against children. The Hollow Water and the Newfoundland and Labrador programs in Canada have shown that restorative justice mechanisms might be at least as (and perhaps more) effective than the criminal process in identifying and reducing family violence (Braithwaite, 2000; Pennell & Burford, 2002).

In the noncriminal context, child protection family group conferences have increased children’s safety (Marsh & Crow, 2000, p. 208; Nixon, 2000, p. 99), and school-based restorative justice programs have improved children’s sense of safety (Morrison, 2002) and reduced behavioral problems (Crow et al., 2004, p. 42). Restorative justice has not specifically targeted noncriminal family violence such as the use of corporal punishment by parents and sibling assaults, although these matters could have been raised during conferences. Small-scale experiments should perhaps be designed to address these types of violence as well.

A first step, then, in fulfilling the protection cluster is to design small-scale experimental projects that include child victims of different crimes and other forms of violence, and test their effectiveness in reducing violence, both against the particular children whose cases are dealt with through these mechanisms, and against other children. To test whether restorative justice can reduce crimes against children on the community level, there would be a need for a systemic use of restorative justice in a specific locality—say, a court jurisdiction in which all crimes against children are referred, as the default option, to restorative justice mechanisms (Sherman & Strang, 2007, p. 90). Beyond the potential financial damage, operating large-scale programs nationally without testing them first can presumably increase the risk of childhood victimization, and would constitute a violation of children’s human rights. Nevertheless, the reduction of young people’s involvement in the criminal justice system, as well as incarceration and apprehension rates, in New Zealand may be indicative of the positive systemic outcomes of restorative justice when implemented nationally (Duncan, 2009; Maxwell & Morris, 2006).

A second requirement drawn from the protection cluster is securing the safety of the specific child during and following his or her involvement in the process. Careful screening of cases should be conducted to exclude children who are at an increased risk of being revictimized by the process, due to the crime (for example, when the child is not only a direct victim of abuse but also witnesses the abusive behavior of (p.181) one parent against the other), their young age, or special needs. In such cases it is possible either to consider alternative measures of participation for children, or to decide not to hold a conference at all. Addressing the specific needs of the child might also increase the likelihood of the process being a positive instead of a distressing experience. The example of an outcome plan requiring the offender to take his terrified victim for a meal at McDonald’s discussed in Chapter 5 (see p. 137) demonstrated how young victims can be revictimized in restorative conferences when their needs and feelings are not adequately addressed.

The safety of the child must not be just a precondition for facilitating the conference, but the central goal of the process as well. Accordingly, a safety plan for the child should be a key element of the outcome agreement. To ensure that this goal is achieved, it is important to go beyond the agreement itself and monitor its compliance by everyone. While ideally family members and other stakeholders are in the best position to conduct such monitoring, professionals should stay involved and “monitor the monitoring” (Burford & Pennell, 1998, p. 253). Additionally, considering children’s difficulties in reporting their victimization, especially in cases of family violence, it is important to ensure that children know who they can (and are invited to) contact if they are victimized again or if the conference plan is violated.

Included in the protection cluster are developmental considerations (the right to development) and concerns regarding children with special needs (the right to equality). Surely, all people under the age of 18 should not be treated similarly simply because of their legal status as minors. There are considerable physical, emotional, mental, and cognitive differences between younger and older children and between children with various capabilities. Therefore, policies need to consider scientific knowledge about developmental stages (and the limitations of such general assumptions), and use this knowledge as a starting point for individual assessments, in order to meet the rights and needs of children of all ages and with various types of needs.

In sum, the protection cluster creates an obligation that no restorative process should be conducted without taking adequate measures to ensure the safety of the child before, during, and following the process, as illustrated by the prudence of Pennell and Burford’s method (1995, 2002). In doing so, the individual capacities of the child and any special needs should be considered. Additionally, restorative practices might be used for noncriminal violent acts against children, such as bullying, sibling violence, and parental corporal punishment, thus broadening the scope of protection provided.

Child-inclusive restorative justice: heuristics for practitioners

This chapter used the needs-rights framework for proposing subsidiary principles for child-inclusive restorative justice. Seen as a whole, the needs-rights approach for restorative justice presented in Figure 6.5 suggests that child victims are not merely objects of protection at the mercy of the authorities, but rather full partners whose emotional wellbeing, empowerment, and participation are central goals in the process. This fits neatly into the underlying restorative justice values of empowerment, rehabilitation, and repair of harm for all stakeholders. The needs-rights model also reminds us of the importance of paying special attention to children as a vulnerable (p.182)

                   Victims to PartnersChild-Inclusive Restorative Justice

Figure 6.5 A needs-rights framework for a child-inclusive restorative justice: subsidiary principles for action (RJ = restorative justice).

population who are, despite their vulnerability, entitled to be included in public discourse. Moreover, the model can help professionals both in the child protection and the criminal justice arenas to identify issues of concern beyond the protective elements that are usually the focus of child-related policies.

Accordingly, this chapter divided the model, similarly to the method employed in Chapter 4 regarding the criminal justice process, into four clusters: best interests, control, procedural justice, and protection. Based on theories and existing empirical findings, subsidiary principles that might promote the ideas represented in each cluster were suggested. These subsidiary principles are a little less abstract than the human rights principles, and move us closer to the world of practice. The importance of such subsidiary principles is that they may have a “gatekeeper” role by grounding practice in certain values, hence assisting in creating new programs, retaining their quality, and helping stakeholders guard against abuses (Bazemore & Earle, 2002). They are also designed to be flexible enough to accommodate adaptation of various restorative justice practices to multiple settings and cultures, as opposed to more specific manuals for action that may fit only specific contexts.

An underlying idea behind these subsidiary principles is that of restorative justice as a social movement aimed at promoting equality among human beings. Therefore, child-inclusive restorative justice seeks to find ways that structurally empower children, help them overcome their inherently weaker status, and enable them to participate in adult discourse as equal partners. Children are less experienced in group discussion, they are less articulate than adults, they are usually not used to speaking up and making their views known, and when they do those views are often misinterpreted or downplayed by adults. Children also often regard adults, and professionals in particular, (p.183) as authority figures and may find it difficult to engage in an open conversation with them; this may be especially true in more traditional communities. The younger the child, the greater these barriers are. Hence, the Convention’s equality principle should be understood in its broader meaning under which children are equally valued people in society who need assistance to learn how to exercise their rights.

To move these principles even closer to practitioners, it is possible to articulate them in eight heuristics, which, if followed by practitioners, might move them closer to meeting the needs-rights of child victims without needing to go through the laborious task of addressing each one of the model’s components separately. One limitation of the model is the large number of elements it includes and the complex interrelationships between them. While it is hoped that the needs-rights model would be valuable for the development of theory, policies, and further studies on child victims, a simpler framework is more useful for practitioners.

It is important to note, however, that the suggested heuristics are aimed at filling the specific niche of child victims involved in restorative justice settings. Many other values, principles, and rules are relevant when practicing the various models of restorative justice. In victim–offender mediation, for example, concepts drawn from the alternative dispute resolution movement, such as the privacy of the parties and neutrality of the mediator, apply. Family group conferences, to give another example, are embedded within or with close proximity to social work practices and theory. Values regarding group empowerment, mutual interdependence, and shared responsibility are salient. Even more closely related, Joan Pennell and Gary Anderson, two prominent writers in the field of family group conferences, offered in their 2005 comprehensive guide Widening the Circle nine principles for conference implementation in cases of family violence. These principles are, to name a few: have the conference belong to the family group; foster understanding of the family and creativity in planning; help the stakeholders take part safely and effectively; tap into the strengths of the family group in making a plan; and promote carrying out the plan (Pennell & Anderson, 2005, p. 8). The proposed heuristics build on Pennell and Anderson’s principles; unlike them, however, they are by definition child-focused and are designed to be applicable to not only family group conferences but other child-inclusive restorative practices as well. Similarly relevant (and yet equivalently different) are the recommendations stated in the National Council of Juvenile and Family Court Judges’ “Greenbook” (Schechter & Edleson, 1999). The principles and recommendations in the Greenbook offer a holistic, comprehensive approach for addressing cases of domestic violence and child maltreatment, and many of them are echoed in the following heuristics as well as in the principles suggested in this chapter. It is important to remember, however, that the victimization of children takes many different forms and often does not occur in the context of family violence. Furthermore, even in cases of family violence, the suggested heuristics and principles are derived from the perspective of children’s needs-rights, thus providing a different way to approach such cases.

The eight heuristics are:

  1. 1. Holism

  2. 2. Tailor-made process

  3. 3. Children as partners

  4. 4. Participation as a continuum

  5. (p.184)
  6. 5. Liberating children’s voices

  7. 6. Let go

  8. 7. Restorative process as a goal

  9. 8. Empowering advocacy

The first heuristic principle emerging from the needs-rights approach is that of holism: child victims need to be treated in a manner that considers them as whole human beings and addresses the full scope of their rights and needs. Accordingly, providing protection and meeting immediate needs alone are insufficient. Children’s rights to participation, rehabilitation, maximal development, and equality need to be met as well, and adults need to consider their strengths, social circumstances, and developmental needs too. Furthermore, these aspects of being a child victim are intertwined and affect each other. One right cannot be considered apart from the others, and ignoring one means making incomplete, sometimes wrong decisions. Holism means continuity as well. As found in the Newfoundland and Labrador experience, when social services stopped being provided once the crisis was over, families felt disappointed and children’s wellbeing was compromised (Burford & Pennell, 1998, p. 164). Accordingly, holism should imply that restorative processes are only part of the full picture; children who have suffered victimization (particularly, but not only, those who suffered family abuse) need continual support and various services that should be provided until they are psychologically and socially rehabilitated. The idea of holism also suggests that children’s different worlds should be considered together and should not be dealt with separately. Put differently, professionals need to make the child’s life their starting point rather than the perspective of any individual state authority such as school, child protection services, or the police. If a child is being bullied at school and is also experiencing or witnessing family violence, these problems should all be included in a restorative process. Without addressing the full scope of violence experienced by children it is difficult to believe that their safety and rehabilitation can be secured.

This point should perhaps be reiterated because a holistic approach to child victims in restorative justice has particular benefits for some of the most problematic forms of childhood victimization. Because of the secretive nature of domestic violence (Peled, 1996), for instance, children witnessing it may conceal the circumstances they live in. But in a holistic approach, indications of domestic violence emerging during a restorative process following, say, bullying, are examined and addressed as well, in a process that can evolve into a combination of justice-, education-, and child protection-related processes. Moreover, a holistic approach also means addressing the interests of the abused caretaker (as well as the other family members’ interests) to meet the full scope of children’s rights and needs. Therefore, a holistic approach to restorative justice can bring together child protection and women’s advocates—who often disagree regarding the appropriate reaction to the violence—to support the stakeholders in finding consensual solutions that address the interests of the child, the parent, and the family as a whole. Such collaborative work is recognized as “best practice” in the field of child protection and domestic violence (Schechter & Edleson, 1999; Wolfe & Jaffe, 2001).

A second heuristic is that each restorative process should be designed as a tailor-made process rather than a standard procedure. To meet the complete scope of the child’s needs and rights, and to enable children to overcome their lack of experience (p.185) and developmental limitations and become true partners, each process should be designed, to the maximum extent possible, according to the child’s wishes, interests, and developmental and social circumstances.

Following Minow’s argument discussed in Chapter 2 for “taking the perspective of the other” (1990), it is arguable that only in an environment that accommodates the child’s specific wishes and needs can children feel that they are listened to and fully respected, and can begin to believe they are able to overcome their inherent weakness due to age. In other words, crafting the form of participation and other elements of the process around the wishes and interests of child victims can structurally empower them and provide the “push” they need for having an equal voice in the process. Creativity and flexibility are needed to allow for different settings and special adjustments. Processes may differ and may be adjusted according to the child’s interests and wishes, in terms of locations, timing, invitation list, form of participation of the child, choice of advocate, the number of meetings, the length of each meeting and the breaks taken, special activities organized before or during the gathering, the language used, the outcome plan, the form of reparation, and the form of apology expected. Children obviously should not be the architects of the whole process, but their wishes should carry special weight so that they feel right from the preparation phase that they can actually influence the process.

The diversity in facilities and professional expertise and training required in different circumstances suggests that one program in each geographical area might be insufficient: a restorative process with a 6-year-old will look very different from one with a 15-year-old. Sexual abuse against children requires different training and settings than those for victims of burglary or bullying. Family violence and abuse presents yet another set of unique challenges not existing in other offenses against children. The variety is so great that it seems desirable (although, admittedly, unrealistic in many places) to have separate programs with specifically trained staffs for different age groups and different types of crimes against children. At a minimum, programs addressing “special” categories of victimization such as sexual and family abuse should ensure that they provide initial and ongoing training for their staff; involve community members, experts in the relevant fields, and state representatives; and have adequate screening and monitoring mechanisms at hand (Schechter & Edleson, 1999).

In addition, children are sometimes victims of crimes together with other adult victims, such as in house burglaries. In these cases they can join a “standard” adult restorative process. Still, regarding them as human rights holders means their inclusion in the process, in accordance with their wishes and interests, while paying due consideration to their specific needs. It seems, then, that a tailor-made model creates great diversities among processes even when identical crimes are discussed. This diversity could raise concerns regarding discrimination, varying levels of professionalism, and risk for the wellbeing of child victims themselves. In such a diverse network, the human rights of child victims (as well as other stakeholders) become central in guarding against malpractice, domination, and harm to stakeholders.

A third heuristic derived from a needs-rights approach is that of children as partners: child victims and professionals handling their cases are partners in designing the process, making it happen, reaching an outcome plan, and monitoring its implementation. Despite their age, children possess unique perspectives important in making the process meet their needs and rights. Partnership with children means more than allowing them to deliver their opinions and then make decisions that (p.186) dramatically affect their lives without them. To treat children with respect and to address their right and need for meaningful participation, professionals and family members need to engage with them in a mutual, ongoing dialog. Starting from the early preparation stage, children and facilitators need to work in a partnership in which each partner contributes according to his or her own perspective, experience, and capacity until the outcome plan is implemented. To make this partnership work, professionals need to make active efforts to seek children’s viewpoints, listen to them, understand their messages, and translate them into action. The Finnish Storycrafting method (Riihelä, 2001) demonstrates how adults can find new ways of listening to very young children and gaining knowledge about their worlds without imposing on them adult methods of communication.

A fourth heuristic is that of participation as a continuum. We know that very young children can form opinions and communicate in varying levels. We also know the developmental benefits of having opportunities to participate, as well as the importance of having a sense of control over the process in the healing journey. A utilitarian argument of reaching better outcomes also supports children’s participation, as well as the moral argument relying on their human rights. We also know, however, that for some children, in some situations, being encouraged to participate might be experienced as yet another form of domination and control, expose them to information that they do not wish to be exposed to, or put them under undesirable pressure. Therefore, special caution should be taken when discussing the form of participation with the child. An understanding of participation as a continuum (following Flekkøy & Kaufman, 1997) might be appropriate. At one end of the continuum is the child’s wish not to take part in the process. This is still a form of participation, as the child is given an opportunity to make his or her choice on this matter. Asking the child for his or her views makes a great difference from the child’s perspective, and even having an option is empowering. Even toddlers can deliver messages of not wanting to speak, draw, play, or think about matters regarding their lives, and this should be respected as well. At the other end of the continuum is full, active participation of the child in the process, and children can be creative in the ways they feel comfortable in participating. In between these two extremes exists an endless number of other options, including indirect (“shuttle”) conferences, having a one-way mirror that allows the child to watch the conference without being seen so that he or she can decide if and when to join the group, having someone speak on behalf of the child, and so forth. According to the previous principles, the form of participation is created in partnership between the child and the facilitator, and can be changed at any stage if the child wishes so.

Hart’s concept of liberating children’s voices (Hart, 1992) is another heuristic principle. It suggests that it is the facilitator’s duty to actively seek the child’s viewpoint. It captures the challenge of overcoming social, developmental, physical, and familial barriers and finding the specific way suitable for each child to speak up. Its underlying assumption is that children have valid stories to tell and that with the right tools, adults can understand and learn from them. This is a strengths-based approach that focuses on the capacities of the child instead of his or her weaknesses. Hart’s suggestion to engage in activities that demonstrate the child’s strengths and talents (1992) is an example of a method that enhances the child’s self-esteem and makes it easier for him or her to take part in an open conversation. Liberating children’s voices relates also to Pranis’s (2002) account on the empowering effect of telling one’s story and being (p.187) listened to respectfully. Children in particular are often overlooked, especially those who have been victimized. Therefore, having their voices liberated and listened to by “a room full of adults” (Haines, 1998) is in itself an empowering, healing experience.

An additional heuristic is what might be called the let go approach. Professionals, like parents, have to take calculated risks with children in allowing them to practice their evolving capacities, even when the cost might be great worries and sometimes painful outcomes. As Waldron (2000) explains, being overly paternalistic might violate the child’s human rights just as much as neglecting the child’s needs for assistance and support (see the discussion on Waldron’s theory on p. 18). Therefore, just as parents learn to let their children climb trees, walk on narrow logs, and go out at night when children insist they are ready for it, professionals too need to understand that participating in a restorative process may be a risk the child is ready to take and is appropriate developmentally, despite their own concerns. Marshall’s study on children’s views regarding their participation in family group conferences demonstrates that children want to take these risks more often than professionals are willing to let them (Marshall, 1997), and suggests that professionals’ overprotectiveness might sometimes derive from “risk management” policy rather than from truly child-centered considerations. The other side of this principle is, however, that like parents, professionals too have to provide emotional support, thorough preparation, and close supervision when letting children make their choices. When a child crosses the road alone for the first time, it often occurs only after numerous explanations, warnings, and practice. The parent might be standing (or hiding) within earshot, ready to jump and grab the child away should a speeding car suddenly appear. Similarly, when children express wishes to take part in conferences, facilitators should respect this wish even when they fear the child could get hurt in the process. They should, however, provide full, clear information about the process and its expected outcomes, try to construct a safe setting for discussion with the child, and monitor the child’s emotional wellbeing throughout the process. Emotional debriefing after the process, as conducted in Sierra Leone (Mann & Theuermann, 2001, p. 32), is an example of the emotional support needed in such cases.

A related heuristic principle is restorative process as a goal. Considering the importance of having opportunities to take part in decision-making processes and having a safe and positive encounter with the perpetrator, a respectful, nondominating restorative justice process can be seen as an important goal in itself, no matter what the outcomes are. The accumulated experience from school-based restorative practices suggests that children who participate in such processes improve their conflict resolution skills, develop empathy for others, and improve their ability to communicate (Crow et al., 2004, p. 42; Morrison, 2002). Moreover, by simply being listened to respectfully and being able to be partners in a collaborative decision-making process, children learn that they are respected members of civil society and that their views matter. Put differently, in restorative settings children can be empowered through the respectful listening of others to their stories (Pranis, 2002), in contrast to the adversarial court environment in which children’s stories are systematically distorted, questioned, and disqualified (Scheppele, 1989). The process itself can also teach family members to treat children with respect and listen to their messages. While the restorative process is not the equivalent of, nor a replacement for, counseling, Angel’s findings (2006) show that restorative justice can reduce trauma symptoms in a way comparable to therapy, at least in the short term. Furthermore, as the evidence described in Chapter 5 indicates, restorative justice (p.188) can be a positive experience that might enhance the child’s feelings of forgiveness and satisfaction and reduce anger and fear, no matter what the outcomes are. At the same time, this principle warns professionals against dominating processes, even when the outcomes seem to address the child’s interests.

Finally, Federle’s “empowering lawyering” model (1996) might be translated into an empowering advocacy principle, under which every child who participates in a restorative justice process should be supported by someone—either from the child’s natural environment or a trained professional—whose role is to advocate for the child’s rights and interests. Such advocates face the challenge of promoting the child’s interests without taking over and silencing the child. The disempowering advocacy dilemma exists in many social movements. Advocacy organizations and human rights lawyers often promote their clients’ cause while silencing them yet again and leaving them uninformed and passive out of good will. On the one hand, the higher the advocate is located in the social ladder (for example, a white male lawyer), the more likely it is that the client’s interests will be accepted. Powerful advocates, however, are typically more distant from their clients and use more subordinating practices. In contrast, the lower the advocate is located in the social ladder (for instance, an unprofessional female volunteer from the victim’s community, or even another teenager), the less effective they presumably will be in promoting the child’s interests, but it is easier to assume that they will engage in a more equal conversation with the child victim.60 The empowering advocacy principle suggests that while the child’s interests should be effectively represented in the process, the child should be constantly in a position to decide on the specific role of the advocate and take over whenever he or she is ready to do so. It requires programs to provide advocacy effective enough to be able to overcome manipulations and power imbalances against the child by the perpetrator or other adults. Accordingly, highly trained professionals or skillful, thoroughly prepared “natural” advocates should be employed for this position. At the same time, advocates should be aware of their tendency to use professional jargon and other threatening practices, which they should avoid with child victims. Professional advocates should also be sensitive of the income disparities between them and the children and their families and should respect cultural, socioeconomic, and ethnic differences.

Is a child-inclusive restorative justice realistic? A cost–benefit analysis

It seems, then, that child victims deserve and require individual, intensive treatment to be able to participate on an equal basis in restorative processes. Even more intensive work is needed in complex cases such as multiple victimization and child abuse. This means investing considerable amounts of money and work in treating each child. Are all these efforts worthwhile? Naturally, an ethical reply would be that this is part of children’s human rights and therefore society is obliged to provide these justice mechanisms, according to the Convention on the Rights of the Child. Since the criminal justice process falls short in meeting the full range of children’s human rights, a child-inclusive alternative has to be created.

There is, however, a utilitarian justification as well. As the following cost–benefit analysis demonstrates, a child–inclusive restorative justice for child victims could actually reduce the costs of justice.

(p.189) The Costs

Let’s begin by looking at the extra costs expected from a child-inclusive restorative justice system.

The most significant expenditure would most likely result from the involvement of a range of professionals in the design, management, and day-to-day practice of programs. To comprehensively address the full range of child victimization, programs would need to involve experts in diverse fields such as domestic violence, child abuse, education, mental health, and child advocacy. Some of these professionals, such as children’s advocates, would probably be involved in most cases, while others (such as experts in domestic violence) need to be available upon request. Above all, facilitators would need to be highly trained and have very low caseloads so that they can conduct thorough and intensive preparation, debriefing, and follow-up beyond the restorative encounter itself.

Another type of expenditure derives from the flexibility needed for programs to be child-inclusive. Programs should be able to offer meeting places with one-way mirrors, separate meeting rooms, separate waiting areas, play areas, perhaps even media facilities to show the child’s televised message on the screen. Processes can last two or more meetings; relatives and other significant supporters who live far off should be financially supported, when needed, to make the trip to the conference. Facilitators should be able to conduct personal face-to-face visits to the central stakeholders, in flexible hours, before and after the process. And children and others involved should be able to contact the program at any time to report further victimization, ask questions, and make requests.

We can envision, then, “boutique” programs, with highly paid professionals working with only a few children at a time, surrounded by multitalented teams, in child-friendly, spacious, and well-equipped facilities. And such programs should be accessible for all children state-wide, with special accommodations for children with special needs, to meet the equality principle. Can this realistically be the standard for all victimized children?

The Savings

In their review of the evidence on restorative justice, Lawrence Sherman and Heather Strang suggest that there is no need for budgetary increases to expand the use of restorative justice. Rather, they argue, it is possible to reallocate the existing funds that are likely to be reduced through the expanded use of restorative justice (Sherman & Strang, 2007, p. 86). Sherman and Strang mention three ways in which the increased use of restorative justice can reduce costs: one is reducing the costs related to the multiple court hearings in each process, including fees for clerical and security personnel, private and public attorneys, and law enforcement officials appearing in court. The costs related to one restorative process, even one involving many professionals and intensive pre- and post-conference work, are significantly lower. Secondly, the reduced use of incarceration as a result of an expansion of restorative justice (the review demonstrates that restorative justice is at least as effective as incarceration in preventing crime) is likely to significantly reduce the costs related to custody, estimated as 35,000 Euro per year for each offender. Thirdly, restorative justice has been found to reduce post-trauma symptoms, and therefore is likely to reduce health-related costs for victims (Sherman & Strang, 2007, p. 86). Considering the severe and long-lasting effects of child abuse, child-inclusive restorative justice may (p.190) be particularly cost-effective both because of its rehabilitative effects (significantly reducing expenses for health-related treatment) and because of children’s increased safety (as the Newfoundland and Labrador program demonstrated).

In addition to these savings, the child-inclusive restorative justice process envisioned here can be cost-effective in three additional ways. First, while complex cases require the involvement of various professionals, it is also likely that the child’s supporters and surrounding community will use their own resources to contribute to the outcome plan, including the provision of support, monitoring, safety measures (when needed), and practical aid. Communities may also offer a comfortable meeting place familiar to the child. Secondly, a holistic approach means that one large, well-invested process might address numerous problems that, alternatively, would have been treated separately in relation to the child and his or her caretakers. One such process is likely to cost less than multiple discussions and decision-making processes within the education, child protection, juvenile justice, and criminal justice systems. Thirdly, processes in which children’s views are actually considered produce more sustainable outcome plans because they meet the expressed needs and wishes of the child; they also reduce the child’s anger and vindictiveness. Consequently, child-inclusive processes reduce the likelihood of the need for additional decision-making processes.

It is possible, then, that a systemic change toward child-inclusive restorative justice might, at least after the initial investment, become cost-effective as a result of the significant savings it can lead to, particularly in the long term.

A final (idealistic) comment

There is, however, a broader social benefit in the development of child-inclusive restorative justice that goes beyond monetary calculations. If adult victims can be positively affected by such processes, as demonstrated in the studies reviewed in this book, then children might be affected by it even more. Because children are still developing, restorative justice in fact has great potential to affect their growth positively, sending children into the adult world with an optimistic message about the power of deliberation, respect, empathy, forgiveness, and trust in others. It could conceivably also develop children’s abilities to negotiate with others and enhance their self-esteem and sense of competence. Sending victimized children away empowered, forgiving, and equipped with improved negotiation skills has the potential to reduce violence, promote deliberative democracy, and enhance social justice.

Potential is not reality, however, and we should not be surprised by the empirical experience we have documented of a few restorative justice conferences that were less than perfect, or damaging, from children’s viewpoints. It seems, nevertheless, that practitioners who follow the eight heuristics suggested might find that they are able to address the needs-rights of child victims without neglecting the vital interests of the other stakeholders. If they do that, the normative and empirical considerations synthesized in this book suggest that it is likely that damage to children will be rare and their liberation from fear and oppression common.

Notes:

(59.) It is possible, however, that the existence of a restorative alternative would encourage more offenders to admit their crime, as the Hollow Water program demonstrated, and thus would make reparation available to more child victims (see p. 140).

(60.) I have seen this dilemma time and time again in my own work as a children’s advocate and in other social organizations: unprofessional volunteers kept close contact with the clients and managed to build a relationship of trust and partnership, but only high-profile attorneys who hardly ever even spoke with the clients managed to make significant legal achievements in difficult cases. In most cases, however, overworked, underpaid, idealistic, typically female legal practitioners working at nongovernmental organizations (like myself) tried to provide quality advocacy services to their clients and develop a relationship based on respect with them.