Addressing the minor, FP faces a number of challenges, different from those raised by adults. They change all the links in the decision making process and consist of some features of mental development process in children and adolescents. The following are worth mentioning:
- existence of a continuous natural process of development and maturation that is very active at all levels,
- the non-homogenous growth process and the rhythm of mental development;
- increased immaturity, plasticity and suggestibility;
- gradual emergence of various functions and skills,
- existence of interdependent and interactive relationships between different morpho-functional systems – psychic, motor, sensory, endocrine, etc.;
- here are certain periods of development with specific impact;
- mental pathology with clinical and evolutive particularities and their forms of manifestation.
They bring with them a number of problems for FP whose solution, to some extent, are different from one country to another. Nowhere in the world these solutions are flawless.
In our country, the following obstacles are to be retained: the inability of institutions for juveniles in terms of providing individualized service and support; the unrealistic character of Article 51 and 75 CP; the risk of minimizing, ignoring and even of mildly infringing the minors’ rights; the impossibility of ri- gorously assessing the injury caused by various aggressions; the occasional delay in taking the protective steps concerning early intervention; the existence of situations that increase the always present risk of induction of suffering to the minor; and the lack of professionals and of specifically profiled services. It is therefore necessary to limit risks by taking measures such as: assertion of the FP of the child and adolescent as subspecialty or competence in; exper- tise in psychiatry and forensic medicine; establishing of training courses and of services that should validate competences in the field , obliging all those invested with decision-making capacity in this area to have certified expertise; and diversification and profiling of institutions for the protection of minors.
As “object” of FP, the minors are a challenge not only due to the large number of complex situations where they may be involved but also to the sensitive issues related to the specific characteristics of their various age stages, which are solved, not infrequently, in a formal or equivocal manner. We will refer below to these issues.
However, we will list the complicated situations, which, by their importance, require a separate presentation. There are three reasons for this:
- to justify the above statement concerning the large number of complex cases where minors are involved,
- because, unfortunately, too often, in the textbooks devoted to child and adolescent psychiatry, the chapters concerning forensic medicine focus mainly on the domain of antisocial acts, because such cases are heavily marked by the specific psychosocial features of the minors.
We shall consider the following aspects:
- all forensic situations that need to assess the mental health and illness, age and mental capacity, judgment and responsibility for the acts committed, exercise capacity and the capacity to anticipate consequences, danger and risk of recurrence of undesirable behaviours, injury from assaults on minors, abuse and neglect, the value of child evidence, the effect of negative influences of family and social environment, safety measures, malpractice, the necessity of informed consent for medical decisions that have to be applied, the state of abandonment, fatherhood;
- all measures for the protection and safety of the child: adoption, divorce, disruption of adoption, declining parental rights, different forms of custody, guardianship, foster care or institutionalization, access rights of persons other than parents etc.
SPECIAL FEATURES OF THE MINOR AS “OBJECT” OF FORENSIC PSYCHIATRY
Of course, in one way or another, references to such features do not miss from Romanian specialist scientific literature (Bogdan -1973; Dragomirescu et al. -1990; Predescu et al. 1988 and 1998).
Undoubtedly, the minor began to pose a particular problem for FP once it was recognized that this is not an adult in miniature and that his psyche differs
not only quantitatively, but also rather qualitatively from that of adults. That imposed the solving of particular problems (see list above), adaptation of all proper concepts and notions and even building new ones as well as the restructuring of the ways to address, interpret and solve the specific problems. Thus, FP came to represent what Schetki and Benedek (1992) considered a subspecialty of child and adolescent psychiatry and medicine and – I might add – a subspecialty of forensic medicine because, professionals in both specialties are equally obliged to have the knowledge to ensure quality services. In fact, even since 1994, in the U.S.A., American College of Graduate Medical Education (ACGME) recognized formal judicial psychiatry as a subspecialty.
1. The existence of a continuous and very active natural process of development and maturation at all levels, starting with the most helpless being, at birth, until he reaches full maturity, after adolescence.
It is a first feature with a major impact on FP.
Firstly, growing in age, the child is in continuous change, so that all parameters and all marks referred to and relied on by the psychiatric forensic medicine in minors 1 are changing both quantitatively and qualitatively. It means that they must define and express a distinct value, depending on each successive stage of child development and not only. For example, in case of juvenile offenders the mental capacity, the cornerstone of assessing facts, changes constantly and with it the judgment on them. However, if the minor committed antisocial acts, on the one hand, the expertise and especially the counter- and over-expertise are performed post-factum, sometimes at relatively long time intervals. This requires retrospective assessment of mental capacity and therefore of facts, making it difficult to interpret the data. If you add that, unfortunately, today, legal processes are often extended and also that the minors’ ability to evaluate what happened before is stimulated by the whole context of discussions and legal proceedings, and that it is influenced by suggestibility, emotional instability, external factors and even forgetfulness, we understand why, quite often, we deal with relativization of the value of information to be assessed based on the present.
Secondly, to be operational, for some benchmarks, it is necessary that they reach a certain level of maturity, which would allow the child to assess the reality and everything around him adequately.
2. The inhomogeneous nature of the growth process and of the pace of mental development. Indeed, in the minor, the process of psychological
growth and development is neither linear, nor uniform or homogeneous or constant and does not have the same pace in all areas or in all individuals at the same time. Accelerations and decelerations occur, as well as inequalities and de-synchronizations of longer or shorter duration, in each mental function separately. The more complex and more deeply involved socially the covered area is, – and from this point of view the child’s behaviour is at the forefront – the less homogeneous the minor’s development and maturation is. As such, for example, mental capacity components (cognitive sphere: emotional, volitional, moral and ethical, anticipatory domains) that are so important in assessing the discernment of facts and therefore of the responsibility, are not necessarily at the same level of development in all minors of the same age. Therefore, even in conditions considered normal for the mental development, the value of various operating parameters cannot be judged based only on calendaristic age or on some already assessed parts (e.g. cognitive) . Consequently, the age of 14 years, the central landmark in the legislation concerning the minors, is not sufficient alone for the certainty of the presence of its corresponding level of development in all juveniles and at all levels.
3. Immaturity, plasticity and increased suggestibility are also characteristics of the minors’ psyche. It should be noted first that they are beneficial
and absolutely necessary. Even more necessary as human beings must be the product of their time. This means that they are obliged to assimilate and learn to adapt and even more, to master the most complex and most mobile external reality. For this, they come into the world with the most open and elastic genetic programme ( Jacob -1972/1970) and require a longer period of time to reach maturity.
At the same time, these characteristics:
- make the minors highly dependent on the protective, mediating and shaping intervention
of the basic family and of the social environment and, by suggestibility, on incidental factors, all of which having a positive or a negative role. For the same reasons, the minors have a better chance of correcting if offered, patiently, adequate and individualized coherent. It is a fundamental aspect of which the FP is obliged to take into account;
- require from FP that all decisions take into account the duty to protect, namely to ensure the conditions necessary to educatinal and vocational training of the minor or what Ash and Derdein (1997) called quasi-therapeutics orientation. Moreover, they must be appropriate to the situation and the real possibilities of each child;
- through immaturity, they prevent the minors to understand the real significance or to anticipate the consequences of situations and even of some decisions taken on their behalf and in their interest, adopting for a longer or shorter period of time, their own manner of assessment and interpretation. These are issues that FP should not disregard when assessing situations, judging facts and making decisions. For example, sexual abuse, neglect or hyper protection a can be ignored, accepted and even preferred to the solutions offered by the courts or by those around them. For these reasons, the minors must be protected even if they do not complain, it is not clear for them why it should be intervened, or they strongly oppose to the decisions made on their behalf or on their own interests.
4. In children and adolescents, as we know it, the emergence of various functions and abilities is gradual, according to a particular schedule for each of them. For this reason, on the one hand, naturally,
both normality and abnormality (genetic or gained) become visible and thus capable of being assessed only at a certain age or at a certain time after the morpho-functional structures that underlie them have been affected . We illustrate this statement with the language acquisition, abstract thinking, sexual orientation, dyslexia, dysgraphia, some genetic disorders etc. Their accurate assessment requires waiting until the age at which they become visible and may be assessed.
5. In the infant-juvenile development, various morpho-functional systems – physical, motor, sensory, endocrine, etc. – are in close interdependent and interactive relationships in the sense that each is positively or negatively conditioned.
For this reason,morpho-functional system performances and downsare reflected in time and space, po sitively or negatively, on the others. For example, it is understood that when the child is hearing impaired, his mental development suffers and especially his language.
6. Existence in the minors of certain periods of development with specific impact on the entire context of psychiatric forensic act. We consider here
the preschool periods or opposition crises, especially those of puberty and adolescence. The first period is characterized (see also Milea 2006 c) by oppositionist behaviour often amplified by everything that is the subject of forensic approach.
Puberty and especially adolescence bring with them a range of features with major impact on the psychiatric forensic act. Actually, adolescence is the peak of juvenile delinquency being called the period of crisis 2. But we consider (Milea-2001) that it is only a vulnerable period because the features that are usually accused are primarily essential, constructive and very creative. Only the overstressing and the inability of the environment to recognize the adolescents needs and sacrifices, to prepare, understand and support them in their efforts to build a distinct, socially recognised individuality, divert their good intentions.
Notable among them are:
- imperceptible accession to the stage of hypothetic- deductive thinking which significantly changes the adolescent’s both rights and responsibility for his actions.
- entry into the true socialization period. This means also propensity for group membership, be it street, or the demand to acceptance, recognition and affirmation as an individual and as a member of the group and through the group of his peers. To the group, as argued Couzinet (1970), the adolescent gives everything is expected of him, just as in turn he receives all that he wants. Among many others, depending on its characteristics, the group gives the adolescent recognition and valuation, protection and negative models, fans of acts of bravado, false values, easy forms of self-affirmation, temptations and their prompt satisfaction, as well as the erroneous belief that the fault of each participant to acts committed in the group is smaller. As a result of the psychological peculiarities, unprotected by a balanced family environment, the minor in general and particularly the adolescent become easily and even unwittingly adopters or passive or active participants in antisocial acts.
- becoming aware of their sexual compulsions, and of their targeting, the subtle process of establishing of the psycho-sexuality with its good parts and all the risks arising from current social context, which unfortunately promotes a limitation of sexual interests to their biological dimension and to the role of simple entertainment or even to a role of merchandise.
- denying child identity and the need for emancipation and valorisation, normal and necessary phenomena marked by high risk in the absence of positive role models, indispensable when engaging on the slope of adopting and building a new identity.
7. In the minor, mental pathology has not only clinical and evolutive features, but also proper forms of expression, whose forensic impact cannot
be overlooked, either, firstly by the diversity and complexity of healthcare needs and the lasting recovery, absolutely necessary in most of situations. In this case, it is not only the juvenile offender who is in focus, as might be supposed. We consider the much larger number of juveniles subject of FP from other completely different reasons.
All these features of the minor are widely recognized challenges and difficulties. Naturally, in this area, formulas to solve them are based on legislative support that offers solutions. Nevertheless, they are neither sufficiently comprehensive nor lacking in formulations, which leave plenty of room for different interpretations. This is because the diversity, complexity and subtlety of the problems are real obstacles, like anything that:
- needs to be classified into the rigid patterns of regulation and law articles,
- often concerns parts in conflicting interests,
- imply additional costs to be covered.
As evidence, we note that regulations are quite different from country to country and, as Ash and Derdeyn (1997) pointed out, even between different constituent states of USA. In general, the differences between options range from solutions based on broader or narrower sets of provisions and articles of law that are referred to, or just add shades on minor issues up to the formula that completely separate the issues concerning minors from the adult ones. Of course, the latter options are preferred because they mean the existence of a separate legislation specifically targeted at minors, some courts and juvenile judges, specialised services and administrative and social structures and certain qualified professionals in the field. Only in this case, as Ash and Deryden (1997) pointed in the United States, there is a clear trend towards considering adolescents as adults.
In our country, despite repeated revisions in recent years, the legislation field did not go completely to a clear demarcation of the minors’ problems from those of the adults. However, a series of chapters and articles of law with distinct features that meet the peculiarities of the minors are present in the Criminal Code (CC), the Criminal Procedure Code (CPC) and the Civil Code (CC). In this context, there were: Different categories of minors, delimited according to: calendar age, mental age, presence or absence of deficiencies, presence or absence of family support, its quality, level of education or professional training, the nature and severity of present somatic suffering, specialized assistance required (educational, school, vocational, psychological, social, psychical, somatic, sensory, neurological) or the severity and recurrence risk of antisocial acts. For example, from the individualised categories of minors mention should be made to intervals of calendar age ranges, respectively mental ranges: 0-10, 10-14, 14-16 and 16-18; The mentioned types of services and institutions for social care and healthcare for vocational education of minors involved in the field;
Specified guidelines on the functioning of various parameters of development and their relevance in terms of forensic psychiatry. Thus, it has been conventionally established that:
- only after the age of 10 years (art.264 CC) hearing the minor is required;
- coming of age and exercise capacity (Art. 38 CC) are recognized starting with the age of 18 years;
- before age of 14 3, the child is not criminally liable for his actions (Article 99 CP) and has no legal
capacity (Article 43 CC), while between the ages of 14 and 18, the exercise capacity is limited;
- between 14-16 years, the presence of discernment cannot be taken for granted, it having to be necessarily certified following the psychiatric procedures whenever it comes to assessing the minor’s responsibility for the facts (Art. 99 CP).
Appropriateness of this provision is emphasized by the fact that:
- in the age range 60% of minors have motivated criminal behaviour psychopathology (Dragomirescu -1990)
- at least 8% of the population has a limit intellect (IQ between 70 and 85%), the rate being, of course, higher among juvenile offenders. In addition, we must not ignore the existence of subcultural backgrounds or families with familial vitiated atmosphere affecting certain components of mental ability of the minor;
It appreciates that minors up to 14 years old can only be heard as a witness in the presence of a parent, guardian or person having custody (Art. 81 CPC.).
It should also be added that, to ensure the correct solution, the legislation calls for the role of arbiter of certain neutral courts subordinate to the principle that the best interests of the child prevail (Art. 263 CC.) and the court’s duty is to decide according to their intimate conviction.
Indisputably, these legislative provisions are very useful. But a careful analysis shows they are not sufficiently adapted to the entire diversity of concrete situations, giving way to some too broad, formal, subjective, simplistic, vague, ambiguous, arbitrary solutions and even to omissions. In fact, this situation explains discrepancies, sometimes very large and troublesome, among options available to different specialists or courts faced with the same situations.
A first observation regards the reserve concerning the capacity of institutions for juveniles who have committed crimes with discernment and the extent to which they can provide services to satisfy their superior interests. One must note that the law provides for three types of establishments (medical rehabilitation centres and educational institutes – Article 101 CPP.) and imprisonment (Art 57 CPP). This, considering that they have an obligation to individualize services depending on age, seriousness of the risk of recurrence, the role (initiator, solitary executor, adopter, more or less active, forced, accidental or passive participant to a group action) level of schooling or professional training and the necessary
health care, education and sustainable social care and recovery. To add the fact that out of lack of adequate solutions, in these institutions are also placed minors who, if they had adequate family support would have only been reprimanded and entrusted to their parents. For the same reasons, here can also arrive those at risk of committing serious antisocial acts. Minors with antisocial behaviour and mild mental retardation, those with multiple disabilities, or those who have committed crimes, but were not punished and are at risk to repeat the severe acts, are also without adequate solutions.
In fact, the practical difficulties, within the institutional framework in Romania, in achieving complex measures necessary for the care and education of minors with antisocial behaviour have been mentioned quite some time ago (Predescu et al. 1988 and 1998; Dragomirescu and col. – 1990 to have been able to be taken into account by the new legislation.
A second finding concerns the unrealistic character of certain provisions of the law:
- Article 51of CC, which states that ignorance or wrong knowledge of the law does not absolve him of guilt;
- Article 75 of CC stating that the offense committed with three or more persons together imply the existence of aggravating circumstances, as well as provisions for equal punishment for the perpetrator, accomplice and protector.
This is because on the one hand, there is nowhere stipulated the obligation to inform or educate the child prior to this effect, on the other hand, as we noted above, the child is naturally inclined to have diametrically opposed beliefs. In fact, sincere motivations like “I did not know”, “It was only me” or “I did not say to do so” are common in children.
A third finding is the fact that, in compliance with the law, sometimes due to the priority rights of others to decide on behalf of the best interests of the child, his right is minimized, ignored and even grossly violated.
We shall begin to illustrate the normal situations, otherwise legal, where, starting from the psychological immaturity and increased suggestibility,in a significant number of children, their consent regarding decisions that directly concern them is not necessary. As such, their opinions and their options either are ignored, or are passed through the filter of those invested with exercise capacity in the place of the minors. It should be noted that there are situations in which the options of those invested with authority and decision role prevail though they do not overlap or are in opposition to the preferences and even immediate or long-term interests of the minor. This is the place where errors and even abuse can occur easily. In fact, even well intentioned, the interested parties can judge wrongly the superior interests of the child and even more his options. Let us remember here everyday life situations where parents think they know better what is in the best interests of their children (profession choices, for example) without further confirmation of their decision in reality.
An even more compelling example is the minor faced with a cascade of conflicts prior to the decision of divorce and the increasingly larger facilities granted to parents who decide to divorce without taking into account the options and even less the interests of the minors. They will be deprived of the presence of a parent without understanding why. They may not accept any court decisions on custody, even if it is based on the presumption of the delicate years and is opting for the mother, or the custody is to be exercised jointly, or the decision is the result of a mediation or a judgment on behalf of the child’s best economic interests at the expense of his psychological comfort or vice versa.
We should emphasize that this time, it is more correct to speak of probably the least harmful solution making it clear in this situation that the children will suffer anyway. In fact, some data show (Practical Parameters -1997) that only in 1/3 of cases the custody decisions are successful.
It should be noted here an increasingly present phenomenon these days generated by the pressures imposed on contemporary society, concerning the imposing and recognition of rights for certain categories of adults, without taking into account the children’s rights, too.This is not only about simplifying the process of dissolution of marriage. There are legal precedents (Ash and Derdeyn -1997) after the secure certification of paternity with the help of DNA analysis, minors unexpectedly come to be removed from their previous system and existential attachment relationships and are entrusted to other families or to one of the natural parents whom, whatever reason, they did not know. Also, in some countries, homosexual couples’ claim to adopt children is recognized and in this way the children’s right to and need for a normal life is ignored. In addition, media acquaints us with options for replacing the words mother and father with the neutral one of parents, as well as those that promote exclusion from children’s education of all that contributes to the awareness of gender differences.
We should not omit the fact here that in our country there were, indeed temporarily, two campaigns with legislative support in which the rights of minors were ignored without any efficient intervention of the institutions for child protection.
The first campaign took place after 1990 and it followed a drastic reduction in the number of children in public care provided by foster care who, not infrequently, was not a family in the true sense but a person interested in receiving more substantial material rights than she/he was qualified and willing to raise a child. Even worse was the abuse in foster care for rural children with health problems when it was known that then, at that level, required specialized needs related to health care and rehabilitation were very difficult if not impossible to satisfy.
The second campaign took place after 1995 and aimed at the mainstream school integration of children from special schools although it was obvious that neither children, nor mainstream schools were adequately prepared for such an activity. In this way, instead of classes of 20 students, a maximum of 2 children with special needs and two supporting teachers as it was provided by the optimal norms (Vrășmaș -1996), what followed was an increase in the number of pupils in regular classes and an excessive burden on teachers who themselves lacked adequate prior training. The result, was psychological dramas, decrease in the level of education and early school leaving.
The fourth finding taken into consideration the fact that in a minor damage resulting from various attacks cannot be rigorously assessed. This is because, as stressed in 2006 was:
- in case of any aggression, some consequences, even with organic base, may remain clinically unknown until an age when the functions whose support was morphologically affected, become active and thus assessable;
- damage from whatever the cause of a function, whatever it may be, may affect after a while, in a
secondary way the development of others, too. For this reason, there are no exceptions where a limited aggression at a certain time, becomes complicated after shorter or longer periods with disabilities that cannot be predicted with certainty;
- in the child, a process of development takes place, meaning continuous natural accumulations.
However, after aggressions, this process may not only regress but it may be stopped or just slowed down.
There are three particular aspects that cause real harm to minors following an aggression of any kind that cannot be equated, as in adults, only with the difference between what the aggressed subject was previously in terms of performance, and what he is upon his current assessment. In the minor, for accuracy, the analyst should take into account not only what the child was before the aggression but the virtual capacity, or what he could have been if his normal development would not have been slowed or interrupted (Fig 1 ). In addition, consideration should be given to any particular late consequences for assaults on the minors as outlined below.
Only that such a correction, even if it would be justified, it is not possible and therefore not considered. Moreover, it should be noted that it is even more difficult to assess the real consequences of aggressions suffered in pre-and perinatal period where, you know, allegations of malpractice, are not missing. This time, because no one can say with certainty what inherited resources the child would have been born with, the main assessment benchmark is missing that could have been indispensable in order to measure the real extent of losses. In fact, it has been said (Milea- 2006-a) that scientific research data studying the consequences of various pre-and perinatal aggressions have a relative character because, for example, in case of a genetic potential above average the child can lose a good percentage of his intellectual quotient, which, if it does not fall below the normal range, it leads to false conclusions regarding pathogenic potential of the concerned pollutant.
For the same reasons, in the minor and in the future assessments, far away in time from the assault, that are justified and required by victims, are even more difficult to interpret. This time, on the one hand, medical history summarizes other possible pathogenic events, too. On the other hand, because of the consequences that may arise, as we have seen, in time usually is difficult to delimit functional or organic downs attributable to aggression for which the assessment is made from the inherited ones that are absent at birth or the due to pathogenic events that occurred before or after the targeted one.
To the above it must be added, and it is good to know, that from the same reasons, any assessments that engage the responsibility of the evaluator concerning the present and future health and development and recovery of various deficiencies (often required for various psychiatric medical expertise) cannot be made only as a guide. This is also because many of the skills, protective factors, genetic vulnerabilities and weaknesses with genetic substrate do not occur and cannot be identified either at birth, or in the first years after the birth. As such, for example, there is no guarantee for the family who adopts a child or for the victims of aggression that surprises may not occur or for the speed or the extent of recovery of any present deficiencies at a certain time.
A fifth finding relates to the fact that laws cannot provide enough support for early protective
intervention. Leaving aside the fact that the time necessary to start and conduct the legal mechanism is also sometimes too long, here we refer to those situations where, for shorter or longer periods of time, the minor is not aware of the negative significance of aggressions, accepts them, even enjoys them or he and his entourage deny the reality. We consider some forms of neglect and even of hyper-protection, but especially sexual abuse. Such situations require initiative and active intervention from outside. However, both detecting the situations and especially launching the intervention face obstacles, being constrained by the adults’ right to decision and to privacy, and also by the unacceptable risk of possible errors.
We exemplify with:
- difficulties linked to suspicion and confirmation of sexual abuse (Ash and Deyrden -1997, -2009
Milea) especially where those directly involved deny some evidence, but also when it is confirmed by the minor. There are the added risks that are unacceptable in case of possible errors or even of mere suspicion;
- difficulty of crossing over the resistance of those responsible for obtaining the necessary agreement in declaring abandonment, in declining of parental rights, in limit cases and in early instituting of various protective measures.
The sixth issue mentions situations that make the minor to suffer though in his case, this is not part
of the declared intentions of the forensic psychiatric medicine. In fact, any legal approach targeting the minor involves a degree of discomfort for the minor. Nevertheless, he is visibly shaken when:
- it is necessary for him to be confronted in court with the aggressor in the event or reconstructions or as witness;
- in almost unavoidable breach of privacy, during the various sequences of the forensic act, especially during the application of decisions that become public if only because they must be carried out;
- whenever he finds that because he is too young, his testimony is not taken into account, his consent is not required or his preferences and options are ignored or minimized;
- the one who, guilty or not, is accused or feels guilty for family breakdown and material poverty following his father’s imprisonment who was punished for incest;
- the one who is entrusted to a parent who is stricter with his school and social obligations, while the other is preferred from a sense of guilt or because the latter, in the desire to buy the child’s affection proves to be excessively lenient or careful with him.
A seventh note refers to the absence of regulations stipulating the express obligation to employ qualified or at least competent professionals in the field of FP of the minors. This gap is present even when it comes to the involvement of health professionals. Of course Article 107 CC mentions the guardianship court and speaks sometimes (Art. 483 CPP.) mentions the condition of specifically appointed judges but their need for special training is not expressly stated. Given the psychological complexity of the child, the lack of the judges’ specialised training of is not likely to give certainty of optimal decisions in all cases.
We ought to mention that there are also shortcomings in the legislation aimed at solving the problems of minors in other countries. In fact, anywhere in the world, in this area, there are no faultless solutions. Ash and Derdain (1997) speak of vague terms involving different interpretations and cites that of “adequate education” and the “least restrictive environment”. In turn, Schmit (2000) points out the difficulty of finding meaningful articulation between repressive and educational side. Soulairol (2000) mentions the ambiguity of laws and Lebovic (2000), adverse legal decisions in the family and the list may go on.
Of course, all these limits of FP legislation of the minor are well known.They are particularly important to remember, since we know that compared to adults, after 14 years, even the minors who are normally developed psychically, have a more modest mental capacity, which continues to progress with age and life experience even after he is considered fully mature. Therefore, to mitigate their consequences considering the minor, the law made a number of provisions such as:
- stipulating that in minors, priority is given to educational measures while penalty is being applied only if it is considered that educational measures are not sufficient to correct the behaviour (Art. 100 PC.):
- support in all cases the best interest of the minor;
- penalties cannot be longer that half of that for adults (Art. 109 PC.).
However, these provisions are too general and levelling; they are insufficient in order to always ensure strict individualization in all situations. I believe that the formula “in the best interests of the child” is not only vague but also precious. Perhaps it would be more preferable a realistic one like “the least detrimental alternative” not to lose sight for a moment that the very act of justice involves trauma to the child and that any solution would choose it has its risks that should be reduced as much as possible.
As we have seen, all these features constitute significant obstacles to rigorous solving many of forensic situations where minors are involved. Eliminating the risk of their formal approach requires:
- Recognition of forensic psychiatry of the minoras a subspecialty or at least as a competence of both child and adolescent psychiatry and forensic medicine.
- Imposition that absolutely all persons who are invested with decision-making capacity in this area to be qualified and possess recognized competence in the field. In fact, in the U.S.A., as outlined in Ash and Derdeyn (1997) in 2001, only graduates of accredited courses can examine in the field.
- Establishment of training courses and competence certification services for doctors as well as lawyers. Only then, the latter can be assured that well known formula of the right of the judge to decide according to his intimate conviction will be sustained by the differentiation and tinting solutions offered depending on the variety, complexity and subtlety of the situations that today’s reality offers.
- Institutional diversification and profiling solutions offered to different categories of minors.
¹ Exercise capacity, mental capacity, judgment, responsibility, criminal responsibility, risk of recurrence, informed consent, cognitive, affective-volitional and ethical-moral development, guilt, intent, fault, offense, crime etc. Gâldău et al. (1988) advanced a tempting suggestion: to speak of psychic capacity as the ability to perform an activity; of judicial capacity, as the ability to be accountable for the violation of the criminal law; and of discernment or discernment capacity as being strictly connected to the moment when a certain act is committed.
2 Originality crisis- Debesse – 1968/1970); Moral crisis – Rousslet- 1969; The age of gainsaying and non-conformity – Vincent – 1969/1972.
3 Thus, it is assumed that at 14, on the cognitive level, the minor reaches the stage of hypothetical-deductive thinking, that gives him not only a superior position in this approach but also the ability to anticipate and in particular to assess the consequences of his choices. In this way, there is not sufficient to have the capacity to delimit what is permitted from what is not and tell the good from the evil or the confession of the guilt as one might assume. There is a need for the ability to control and restrain impulses and resist temptations, to assess the full extent of the consequences and most importantly, to take account of them, respectively, to deliberate enough before deciding. There are countries where 18 and not 14 is the age of the minor’s criminal responsibility.
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