The article presents aspects of the antecedents in activity of the Juvenile Forensic Psychiatric Services Commissions (JFPC) in Romania that compile case reports at the request of the judicial courts. Our material pleads for the necessity of training experts in this particular field selected from the ranks of specialists in child and adolescent neuropsychiatry. In 1989, the only training course in this field, entitled “Training Programme in Child Forensic Psychiatry”, was developed at the CANP Centre Timisoara and we suggest that this model should be reproduced at present, too. The Juvenile Forensic Psychiatric Services Commissions examine both young people with deviant behaviour who committed offences against the law and youths who are victims of the aggressions and abuses they suffered in their lives, both aspects requiring important professional competencies.
Juvenile forensic psychiatric expertise is a synthetic science with multidisciplinary roots. The training sources of the specialist expert are based on the following medical disciplines: forensic medicine, child and adolescent psychiatry and psychology, adult psychiatry, paediatrics, human genetics, together with judicial sciences, more precisely judicial anthropology and sociological sciences. Forensic Expertise, called Judicial Medicine has several specializations as Judicial Technical Expertise, Forensic, Clinical Forensic Expertise for Trauma, Thanatology, Forensic Psychiatry for Adults, Forensic Psychiatry for Minors, Extrajudicial Expertise,Parenthood Forensic Expertise, and more.
The judicial sciences evidence the level of knowledge, of conceptions and the degree of the application of the law, while the psycho-sociological sciences focus on the mental quality and on the quality of the environment where the young person comes from, especially of his or her family, analysing both the social background and the social, ethnic, religious and cultural position of the respective youth.
First Judicial and Social Psychiatry manual, written on a scientifical proves, appears in our country in 1877 being developed by the psychiatrist Alex Sutzu. This was the beginning of psychiatrist participation at the menthally ill eexpertise. Since 1960, forensic psychiatric practice becomes official. According to modern orientation in the field, was concomitantly formalized the forensic expertise for minors.
In our country, the Juvenile Forensic Psychiatric Expertise (JFPE) was introduced in the 1960s, when the first generation of specialists in child neuropsychiatry graduated their studies. Until then, the expertise reports for the juveniles were compiled by adult psychiatrists or they were based on references from school staff or family. JFPE is a modern multidisciplinary field that has gradually progressed into its present position.
Basically MJ expertise is required for juvenile criminal cases, and less frequently in civil cases (divorce, child home setting).
In civil law, which occupies half of concerns of legal sciences, law is broader establishing paternity. Expertise in this area asks us to establish a juvenile mental quality. Court in criminal acts committed calls for discernment which entails responsibility expert professionals, who must have accurate knowledge for age-specific expertise. From here we start to analyze the mental and emotional states that lead at the age of puberty and adolescence to criminal acts.
Middle school and high school teenager are bio-psycho-social beings who are involved in sex impulse pressure. Most of teenagers thoughts and actions are influenced by these trends. Family, school and society can work together to transform instinctual sexuality in psychosexuality.
It is known that teenagers go through great crisis of life: puberty and adolescence, which are leaps of situations transformations. These situations make him oppositionist and unhappy. So we see that there are situations that we know – and who directs us to be empathetic with adolescent expertise, we understand that the appliance has gone through dramatic situations. The situation is even more complex when the child is executor adults wishes, who take advantage of naivety and induction condition in which the adolescent is easy to handle. If the law condemns the complicity, we can justify adolescent mental fragility by knowing the specifics of this age, the child is unable to appreciate the delinquent complicity, and he is forced to appear complice.
We take into account the existence of “positive delinquency” of this age, which is a new trend in social concepts that relate to youth movements and demands, often positive for society. But that positivism is usually appreciated after a period of time – not after committed.
We also know that in Judicial Psychiatry there is an endless discussion of terms used in surveys: the value conclusions expressed by “discernment” or “responsibility”.
Prof. Ed. Pamfil has repeatedly exposed appreciation of this binomial as: discernment is the most primitive intelligence assessment that includes not only the ability to predict and include mental capacity limits, while responsibility is the term that refers to mental capacity of Expertise, meaning the reference expert in intelligence, emotion, empathy, ability to predict and social position of the perpetrator in relationships with family and community to face the legal assessment of his actions. It is recommended therefore that our expertise to relate to responsibility, which is a broader concept than discernment.
With these remarks on the specificity of JFPE we may present the requirements and the components of this expertise.
First, the scope of JFPE is to establish the discernment in connection to law violations committed by youths or to the depressions suffered by youths. We may give the example of victimizing the youths, following a press release from December 1997 that established the fact that “at the General Prosecutor’s Office, 1254 files containing sexual crimes against minors have been accumulated”. From this release, one may have inferred that sexual exploitation and sexual abuse of minors is a frequent practice, that there are girls that become sick with venereal diseases from the age of 8-10 years and that boys fall prey to paedophiles starting with the age of 10-12 years, that most of the victims belong to the ranks of throwaways. At the prosecution of aggressors and of panderers, the law courts often require the forensic psychiatric expertise of the minors who were victims of aggressions.
Modern legislation establishes the necessity that commissions of specialist experts should determine the assessments, which are to be accepted as evidence and documents by the courts of justice. The Frame of Criminal Procedure establishes the general and the compulsory conditions where the FPE is requested. This document also stipulates that FPE is obligatory in cases where minor children are involved. These commissions are chaired by experts in forensic medicine and are made up of representatives of the judicial authority such as the prosecutor for minors who is appointed by the court, specialised jurists, the child and adolescent psychiatrist, the psychologist, the sociologist and the psycho-pedagogue. They participate in compiling the prosecution file using data on the psychic, family, and school situation of the minor child. A commission may request further documents and examinations in other medical specialties or documents concerning the child or adolescent under examination.
In many cases, investigators dossiers contain details about premeditation facts about the recurrence of juvenile offenders or other documentation. In these situations, the specialist will decide according to CANP Admission to law offenders.
The investigators who prepare the prosecution file may present aspects or clarifications from the file but they do not participate in the FE itself. The law establishes the conditions that should be met by parents, guardians or the lawyer of the case in order to be allowed to participate in the expertise of the minor. The activities of the Juvenile Forensic Commission are a judicial component that enforces the law in situations specific for the developmental ages, with all the psychological and psycho-pathological variants that characterize those ages.
The Forensic Medicine Services appoint CANP specialists for the respective commissions. The decisions by the Mina Minovici Forensic Medicine Institute or by its subsidiaries confirm the selected specialists as occasional (for limited periods) or permanent experts within the forensic commissions for minors
While from the beginnings (1960s) until the 1990s, the participation of the CANP specialist was included in his or her job “duties”, without remuneration, now the performance of expert is recognized financially, too, which includes us among modern states in terms of remunerative practices.
In these circumstances of being part of forensic commissions (FC) for juveniles, we infer the necessity of training CANP specialists to become experts in this field. Training may be achieved by courses, training programmes and specialised studies of the members of the FC.
In the medico-psychiatric field, initial training stages are directed at psychiatry residents involved in FPEMC while, in the judiciary, training starts by creating a panel of judges for minors, which should include the lawyers who work for the courts involved in these ages. The development of competence or the specialization of CANP specialists in the FPEMC field might start, in our opinion, with the study of certain UNO documents such as The Universal Declaration of Human Rights, The Declaration of the Rights of the Child and the Declaration on the Rights of Disabled Persons. Then, the study of Romanian legislation: Criminal Code and Criminal Procedure Code should follow.
The provisions concerning the operation of the JFPE Commission mention also the Investigation File, which should contain documents on the quality of the minor as subject of expertise. These documents establish the minor’s identity, report on the social inquiry and on the psychological examination, and establish the child’s social and familial situation together with the evolution of his /her behaviour. There are also psychological tests, evidence of admissions to hospital and records of the care and treatment followed by the minor. At this point the role of the child and adolescent psychiatrist in the JFPE Commission begins, since he/she is the best-informed specialist in the science that studies the specific behaviour of humans at each developmental age.
The first milestone resulting from the documents contained in the Investigation File deals with the mental age of the subject and conclusions of the commission are based on this diagnosis of mental age – rather than on the biological age stated in the papers. From this point of view, the CANP specialist may be considered as a representative, and in some cases, as a neutral defender of the minor child concerned. Ideally, the knowledge and competence acquired by the CANP specialist after the training combined with the practice besides the forensic commissions should be validated by an exam that should enable the specialist to become an expert and a component of the Medical Expert Corps, thus being able to function according to the statute of this organization.
Which might be the contribution and the obligations of the child and adolescent psychiatrist? According to the Romanian legislation, it has been established that minor children lack discernment and are irresponsible until the age of 14 and thus no criminal punishment can be pronounced against them before they reach this age. We have a word in the expertise of minors aged 14-16 years who are investigated on condition to provide forensic psychiatric conclusions, which should establish the existence of discernment and to recommend legal corrective measures.
For the age group 16-18 years, legal classification and liability under the Criminal Code applies if JFE establishes the existence of discernment of the committed acts. CANP specialist contributes to the diagnosis of mental disorder and to the recommendation of certain measures appropriate to the diagnosed psychopathology. Thus, the file examination procedures, (of the history of the child, of the study of social inquiry and of the psychological examination that should be completed), take time and are important because in many cases JFPE specifies or changes the legal classification, and even the future of the investigated youth.
It is desirable that expert pediatric neuropsychiatrist to be well trained and knowledgeable in many specific areas of development ages and anthropological transformation, so knowing anthropology mental development age, mental transformation from child to adult.
This knowledge includes chapters on psychology and psychopathology of neuroscience, sociology and pedagogy of all connections with the history of expertise case. In order to establish the scientific position of the pediatric neuropsychiatry specialist help drafting, detailed and clear motivation expertise and diagnoses and conclusions to be usable in court decisions. But this writing forces us to know that justice is “the one that generates justice for Society” (E. Pamfil.) and the Justice requires truth, justice and civilization. So remember that justice is not forgiving or understanding. Justice, law enforcement, so drafting expertise and conclusions must be compelling, well documented in the context of legislation.
Because we do not have an analysis of the delinquencies committed by minors along the years, we can only make an account of certain findings: during the first periods of activity of the Juvenile Forensic Expertise Commission, the majority of expertise investigations used to analyse thefts and aggressions. During the last 15-20 years, more severe offences appeared such as rapes, robberies and acts connected to alcohol consumption and drugs, murders included.
We must also mention the fact that the most frequent recommendation from the earlier periods was the supervision by family and school staff, while the more severe and recurrent offences were punished in prisons for adults or for minors, organised separately for boys and for girls. These days, rehabilitation and detention centres have been organised, and for the youths with psychopathological problems hospitalization in specialized hospitals is recommended.
From the experts’ practice, we mention that some of the specifications of the expertise require a detailed case study. In such situations, it is required to complete the respective investigation file with other examinations or hospitalizations mainly in child and adolescent psychiatry sections, or, if necessary, with diagnoses established by other specialist physicians, sociologists, psychologists or recovery specialists who are asked to join the commission.
The provisions of Penal Code (PC) and of the Penal Procedure Code (PPC) in relation to the medical hospitalization in order to establish or to confirm the psychiatric diagnostic, define also certain security measures: compulsion to medical treatment, medical hospitalization, interdiction to occupy a function (pupil, student, worker, etc.).
H. Ardelean, supported by prof. V. Dragomirescu, proposed that all forensic psychiatric surveys in the cases of penal offences should be hospitalised in specialized departments for follow-up and clarification by clinical observation and further examination. The author hospitalizes all cases presented for Forensic Psychiatric Examination. This practice brings many advantages, even in clear cases where hospitalization may seem formal. The major advantage is that all clinical findings are recorded in the psychiatric observation sheet. This medical document becomes also a medical-legal act, which is kept in archives and might be used in cases of relapse. The child and adolescent psychiatrist has the leading role in JFPE Commission in establishing and maintaining a proper diagnosis.
Currently, the Criminal Procedure Article 117 CPC, stipulates the obligation FPE also in adults with psychiatric history and all minors. Regulations are extensive expertise in CPC Articles 201 -214, GO No. 1/2000, GD No. 774/2000, Law no. 459/2001, Law No. 271/2004, as well as the Family Code. Criminal Code Article 48, result and expertise neuropsychiatric examination is considered to justify a solution considered grounds for decisions criminal prosecution and traceable. Juvenile C.E.M.L.Psi. may recommend a proposal to implement a form of punitive damages. Under our law, FPE. can not be reduced to a diagnostic formulation and enunciation. Expertise requires an approach and socio-legal purpose, which gives legal document probative value. MFPE contribute to the legal act establishing the truth. According to WHO standards required EMLPsi used as tools of ICD classification (International Classification of Diseases ICD), seconded by DSM.
Classification according to a diagnostic is preferred to be made in conformity to (or near) the International Classification of Diseases (ICD) by the WHO. This classification in ICD allows the court to bring it close to the categories of PPC benefiting the mentally ill or retarded child.
The child and adolescent psychiatrist will consider the relationship existing between development and the tasks or objectives of development in life as they set by Erikson (1960/1963). Thus, the early childhood is focused on imitation and on the development of fundamental confidence while adolescence is associated with the development of identity. Besides diagnosis, it is useful to consider the child’s emotional quality, specifying whether he or she had conditions to develop attachment, has the ability to define him/herself, therefore has an identity and whether is able to participate empathetically in relationships with his/her victims.
One of the main judicial requirements in connection to the minor’s discernment is to establish his/her responsibility for the offence (which is proved by the investigators), in a time before the examination. Thus, the expertise has to determine the existence of marks and evidence of performance, preparation and premeditation of the crime. Has the minor prepared the offence (offences) in mind or together with other perpetrators, was he/she the only performer or was part of a group of offenders. Was the minor taught and used as perpetrator by other initiators or accomplices?
In many situations, it is quite easy for the child to be trained for false answers, which the commission should establish or to recall in the final report. With this remark, we arrive at the difficulties in the field of the JFPE. The minor children can be influenced by threats to declare other stories than the real facts so the commission is in need of qualified experts for such expertise. We need to emphasize that CANP experts should therefore be specialized in this field through training stages and courses in order to be authorised and credible in this area.
The conclusions of the forensic expertise report for the minor need to establish the discernment, as the specialist in judicial psychology, T. Bogdan (1973), defined it: „Discernment is the ability of the individual, which allows them, based on anterior experiences and feelings, direct or indirect, to understand and to judge by anticipation an action springing from a conflicting situation. This judgement involves at least a rudimentary knowledge of ethical and social values „.
For European children, according to J. Piaget, it is considered a valid finding that, at the age of 11-12 years, formal-logical thinking develops, which is necessary but insufficient for the existence of discernment in the full sense of the word. The existence of well-defined moral and empathic feelings is felt at 12 years and it becomes pregnant at 14-15 years. These developments may be delayed due to cognitive impairment, or lack of moral education and socialization. The CANP specialist take into account that between 12-14 years old a normal child can operate logically, but is unable to make ethical and moral value judgments – and is unable to act on these judgments.
In the JFE, discernment is not an indicator of intellectual and ethical maturity, because it develops only gradually with age and it has individual characteristics. Specialist assessment should be based on personalised issues such as the genetic history, organic suffering educational and social skills development. For many reasons we cannot talk about discernment in general, but the discernment of a particular child or adolescent who is investigated because of involvement in a specific act or acts.
In our country, at the 1963 Infant Neuropsychiatry Meeting, Prof. E. Pamfil introduced the concept of liminar intellect (defined in the French paedo-psychiatry from the years 1939-1940). This led to a new concept used in the JFPE: the term “diminished discernment”, which is a reality but it displeases the lawyers who want JFE to specify their conclusions like “yes” or “no”. Does the offender possess discernment of the committed deeds or not? On the other side, adolescents are known to participate in life with occasional behavioural problems, and may fall into a category of temporary decreased discrimination.
JFE procedures are based on certain “a posteriori” data, i.e. after committing the offence and the requirements of the panel of judges are focused on the presence or absence of discernment “when committing the offence or the incriminating acts.” This relationship of “retrospective”, assessment is the most common method of working in the JFE committee, but certainty of the assessment of discernment is measured against the time elapsed since the performance of the offence, so our findings can be quite relative.
Only the situations where the investigated juvenile is registered with a previous diagnosis may facilitate the assessments of the child and adolescent psychiatric expert. We consider that establishing the discernment in minors can lead to conclusions of a reasonable certainty on their responsibility of committing one or many offenses on previous occasions. In case the forensic report of a commission is challenged, a juvenile forensic expertise committee from another university centre solves the appeal.
In our practice, CANP specialists, participants in the JFPE Commissions are trained by assisting to these investigations, each case being instructive and important. There are also other doors open to information and expertise in this field: courses, conferences, congresses, meetings of international specialization in law studies (since the legislation is constantly frequently amended) and of course any seminars or courses dedicated to juveniles’ deviant behaviour of, including study of aggressive behaviour in children and young people and forms of rehabilitation of juvenile offenders.
National network of our country Forensic experts are nominated 205 officials from Forensic Institute Mina Minovici, Institutes of University Centers, and Forensic Services County. Promotion experts forensic category is made according to the criteria of certification or suspension of forensic expert, law 459/2001. This promotion may be applied under conditions of specialization and neuro-psychiatrists for children and adolescents. In European countries, specialist psychiatrists and child-adolescent psychiatrists are experts in office, after attending the Committee of expertise. These specialists have time of 4-6 weeks to study the case and to determine the current physical condition before and Expertise. The results reach to the Special Court for minors and family, where the judges know how to evaluate the condition of the defendant, after undergoing training courses. Forensic psychiatric examinations for minors are valid and have national and international recognition.
A unique example until now in our country is the “Continuing Professional Development Programme in Juvenile Forensic Psychiatric Expertise” organised by the Timisoara Child and Adolescent Neurology and Psychiatry Centre between 26.06.-10.07.1989 in cooperation with the Faculty for the Specialization and Professional Development of Physicians and Pharmacists (FSPDPP) from the Ministry of Health.
We must mention further the distinguished lecturers of this course: Prof. Dr. Traian Crișan, Prof. Dr. Milan Dressler, Chief of Forensic Medicine Department from The Timisoara Institute of Medicine and Pharmacy, director of the Timis subsidiary of the Mina Minovici Institute of Forensic Medicine, Prof. Dr. Eduard Pamfil, Chief of the Psychiatry Clinic from Timisoara, Chief Prosecutor M. Dumitru, Prosecutor E. Ciavici – both of them from the Timisoara Prosecution, Prof. Dr. Șt. Milea, Chief of the Child and Adolescent Psychiatry Clinic from Bucharest, Primary medics in forensic medicine: M. Ciobanu and Florin Gâldău from Timișoara, psychologist D. Ciumăgeanu from the Timisoara CANP Clinic and the organizer of the course, Dr. C. Lupu, Chief Physician of the Timisoara CANP Clinic and Dr. Florin Tudose was the delegate of the Ministry of Health.
Here is a list of the participants to the training course: Dr. Lucia Șulea (Alba-Iulia), Dr. Costiner Elmano (București), Dr. Barbu Negreanu (Târgu-Jiu), Dr. Corneliu Lăzărescu (Râmnicu-Vâlcea), Dr. S. Bencovschi (Arad), Dr. Viorica Dogaru și Dr. Viorica Seviciu (Deva), Dr. Maria Voroneanu (București), Dr. Dana Mănescu (Reșița), Dr. Ovidiu Mihai (Buzău), Dr. Liana Smeureanu (Pitești), Dr. Adriana Bălan (Hunedoara), Dr. Ana Fianu (Focșani), Dr. Judith Moraru (Cluj), Dr. Erika Schulz (Zalău), Dr. Maria Todea (Miercurea Ciuc), Dr. Anisa Săbăduș (Târgoviște), Dr. Violeta Pop (Oradea), Dr. C-tin Tocaciu (Lugoj), Dr. Violeta Stan (Timișoara), Psih. Victoria Gulyas (Timișoara), Psih. Doina Feier (Timișoara), Dr. Alexandra Enache (actualmente Prof. Univ. la Catedra de Medicină-Legală a UMF V. Babeș Timișoara).
The above-mentioned participants, the organisers, lecturers and trainees in this programme agreed to sustain and propose to the Ministry of Justice the organization of specialised panels of judges for minors. Memoranda have been sent to the Ministry of Justice and to the Ministry of Health on our behalf containing detailed justifications in favour of organizing specialised courts and of instituting the title of Expert in FPM. These requirements are still valid today.
The presentation of certain working conditions of FPEMC Commissions starting with the years 1960 up to the present and of certain conditions required from the child and adolescent psychiatrist is an important subject, which may always be updated.
In our opinion, it is necessary to train experts from the ranks of specialist physicians, who should be included in the Medical Experts Corps and who should benefit from all the conditions of activity specific to this organization.
The main subject of the present material is devoted to the training and assessment of discernment in puberty and adolescence, a concept that uses the judicial procedures mainly, and one that allows the CANP specialist to prove her or his professional competence. We want to point out the difficulties that appear inside a FEMC commission due to the specific of the development stages of the child and adolescent, which depend on a multitude of endogenic and exogenous influences that shape the youth’s psychic. Stress has been laid on the film of how an expertise takes place, this kind of approach leading to the conclusion that, in this particular field, experts are necessary both in medicine and in the judicial science.
The judicial psychiatry and forensic expertise of the minor child does not have a written history yet, neither are there theories or staged analyses. Unlike the forensic expertise of the adult, it implies many procedures and local aspects, conceptual evolutions in perpetual transformation as well as changes in children’s and adolescents’ thinking and behaviour. We shall have to follow these social, judicial and medical-psychological evolutions imposed by the evolution of life.
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