Traditionally a child has been deﬁned as a comparative negative: a child is an individual who is not yet an adult. (van Bueren, 1998, p. 33)
Child, youth, teenager, adult, in-betweener, young adult, adolescent…a range of labels are allocated at various times and in various places to those young people who are the subject of this special issue. Perhaps surprisingly, there are no universally agreed ages at which childhood, or any designation (other perhaps than ‘teenager’, which could be deﬁned in numerical terms alone), begins or ends.
The age deﬁnition applicable to the stages of human development and life—childhood, youth, adulthood, middle age, old age—are, by their very essence, social constructs. Parameters for such phases (and these are only some examples) are inevitably dependent on the society in which the person is located. There is no standard ‘taxonomy’ which the law can draw on. Views on the beginning of childhood are characterised by religious and moral standpoints on the beginning of life, inﬂuences which have little impact on the end of childhood.
Nevertheless, childhood is something every human being who survives birth experiences, irrespective of its formal duration. This renders it unique.
This paper seeks to provide a review of the construction of youth in the Commonwealth drawing on research across a range of data sources. According to Commonwealth data, some 60% of Commonwealth citizens are under the age of 30 (Commonwealth, 2013, p. 12).
In some states, the number of children (those under 18) is more than half the population. This is a signiﬁcant proportion of young people and of course has consequences for a range of resource considerations such as health services, schooling, juvenile justice, the provision of food and housing and physical security. To achieve the objective of better understanding when a child becomes an adult or at least assumes many adult legal powers, this paper seeks to determine the upper parameters of childhood, using legal measurements. In order to answer the question when is a child not a child?, a broad review of key moments in the progression of child to adult are considered across the Commonwealth, identifying the ages at which children can marry, leave school, take up full-time employment, engage in sexual intercourse, exercise legal capacity and be imbued with criminal responsibility.
Background and Theories
Within the Commonwealth, the Youth Affairs Division was established in 1973 and remains the centrepoint for work with young people. The Commonwealth pioneered the Youth Development Index that was launched in 2013, the 40th anniversary of the Commonwealth’s work on youth, development and empowerment. In any writing about children and young people, it is necessary to set clearly the parameters which apply to the study. In this instance, the special issue concerns youth and the Commonwealth. The purpose of this paper is to present an overview of a range of legal age limits which apply to young people in the Commonwealth. As a starting point, the UN Convention on the Rights of the Child 1989, which all Commonwealth states have ratiﬁed, states the intention that its protective ambit should apply to everyone below the age of 18 years (Article 1). This provides an indicator of the age limit prevailing in the Convention. However, this does not mean that those below the age of 18 must be treated as children or that the protection of the Convention ceases on a child’s 18th birthday. There is also recognition that individual states may vary this age. As states develop, the protective ambit of laws protecting young people tends to increase in scope and extend to offer the ‘luxury’ of greater protection to more young people—although some young people may resent and indeed resist this ‘benign’ patriarchy of the state. Conversely, the practicalities of survival mean responsibilities of adulthood are necessarily assumed at an earlier age in less developed and developing countries. Education is often sacriﬁced for labour in order to ensure essential family needs are met. The leisure of childhood is forfeited due to responsibilities to undertake domestic tasks, look after younger siblings or help cultivate or collect food. From a biological/physiological perspective, the onset of puberty marks the transition from childhood to adulthood. Physiologically this transition can be identiﬁed deﬁnitively as the body exhibits changes as it matures to enable sexual reproduction. However, the actual age bracket within which these changes occur varies. This is thus not helpful as a legal measure given the considerable variation of lived experience of young people.
Moreover, biological age does not necessarily reﬂect a person’s psychological or emotional age. Puberty may, however, be an important marker—especially for girl children, which marks them as ready for adult responsibility, especially where the age of marriage or betrothal is quite young. It may mark the point at which they are segregated, ritualised or expected to take on roles that distinguish them from ‘children’ despite their chronological youth. In all societies there is this progress along the spectrum from infant to adult, and there is a wealth of literature on children, youth and adults and the ‘transitioning period’ as various authors perceive it to be (e.g. Brannen and Nilsen, 2002). Philosophers, sociologists and educationists all have views on the matter. Childhood researchers often frame work around the notions of ‘being’ and ‘becoming’ (Qvortrup et al., 1994; James et al., 1998). So too does the law. ‘Being’ refers to the child social actor as constructing his or her own childhood with views and experiences about being a child; ‘becoming’ is thus focused on what the child will become in the future, an adult in the making, not what she or he is at present (Uprichard, 2008, p. 304). The former is thus centred in the present; the latter very much future orientated. Both arguably bring an assumption of a lack of, or at least less, competency in childhood with a progression from a state of vulnerability (the child as receptor) to one of sophistication (Young, 1990, p. 41) (the child as actor or agent). This links clearly to theories on development which inform ideas about how best to shape and nurture the child towards adulthood. This links in turn to the idea of evolving capacity. Uprichard (2008, p. 1) argues for a combination of the two with ‘children and childhood … always and necessarily “being and becomings”’ (emphasis in original text). This argues for reinstating the present of the child alongside the future of the child, recognising that children do become adults while acknowledging the inﬂuence of the present on shaping the child today. In this paper, the approach is particularly relevant as youth are obviously located at a temporal point of being, on the very edge of becoming an adult. Youth, therefore, are necessarily at an apex of any developmental paradigm.
From a legal standpoint, development of legal capacity and the passing of speciﬁed minimum ages indicate progress towards the tipping point beyond which the child is deemed adult. However, the absolutism of law poses its own challenges, ignoring individualism in favour of ‘age-grading’ (Zimring, 2014, p. 87). There is something slightly absurd about the notion that a person awakes on their 18th birthday and immediately has an understanding of the implications of marriage not present the previous day; or with sufﬁcient awareness of politics to justify being permitted to vote that day and not the day before. There also are a number of anomalies arising from the legal use of age limits— a child has criminal responsibility but not sufﬁcient understanding of crime to sit on a jury (McDiarmid, 2013, p. 156); young people can sometimes be old enough to be married but not have legal capacity to contract for property, and so on. A variety of different age limits apply to different situations for children in different jurisdictions. There is little evidence of consistency. This paper selects some key age limits usually speciﬁed in law and analyses their appropriateness.
The UN Convention on the Rights of the Child and Other Instruments
The UN Convention on the Rights of the Child is taken as the starting point for contemporary law. It was adopted by the United Nations in 1989 and swiftly became the most ratiﬁed of the core UN human rights treaties—all Commonwealth states have ratiﬁed it. Neither of the instruments preceding it—the 1924 League Declaration on the Rights of the Child and the United Nations 1959 Declaration on the Rights of the Child —mentioned an end date for childhood. Neither of these instruments was legally binding. The imposition of an upper age limit in the Convention was subject to debate during its drafting. Among the issues raised were the then prevailing lower age for marriage and the end of compulsory education around the world (van Bueren, 1998, p. 36). Fixing of an age limit was advisable given the legally binding nature of the Convention, although it should be noted that 18 is not the age used in all other treaties on children (see below). Within the UN Convention on the Rights of the Child, the emphasis is on protecting the child from harm, ensuring the participation of the child in decisions affecting her or him, preventing discrimination against the child on any ground and provision of essentials for survival and development (van Bueren, 1998). Its governing principles are non-discrimination (Article 2), the best interests of the child (Article 3), survival and development (Article 6) and the view of the child (Article 12). The Convention itself includes a wide range of rights, including education (Article 28), juvenile justice (Article 40), participation (Article 12) and labour (Article 32). The African Union has its own regional treaty on children—the 1990 African Charter on the Rights and Welfare of the Child. This follows the UN deﬁnition by applying to every human being under 18 years, though it offers no exception of lower national age limits (Article 2). The protective ambit is thus stronger. The Charter has a very wide reach, covering a range of rights. Of particular interest, customs, traditions, culture and religious practices that are inconsistent with the Charter are discouraged (Article 1(3); Article 21). There is no right to marry (the UN Convention is the same), thus it can be inferred that this should be post-18. However, juvenile justice (Article 17), work (Article 15) and education (Article 11) are covered. Compliance with both the Convention and the Charter is administered by committees of experts. Inevitably, some Commonwealth states are accountable to both. In these Commonwealth countries those youth below the age of 18 are, by virtue of their age, likely to be able to draw on the protection of the African Charter on the Rights and Welfare of the Child and the UN Convention on the Rights of the Child. Both these instruments apply from birth and thus include a range of younger people from birth through infancy and early childhood to adolescence and youth. Youth are, moreover, the target of speciﬁc focuses of measures within the Commonwealth and other regional organisations, membership of which includes Commonwealth states.
The Commonwealth Youth Programme deﬁnes youth as those aged 15–29 years. There are of course no treaties associated with this. With a high percentage of youthful population, it is unsurprising that Africa is home to the ﬁrst signiﬁcant legally binding instruments on the rights and responsibilities of young people. The African Union adopted its Youth Charter in 2006 with the treaty entering into force in 2009.2 This draws on elements of the UN millennium development goals while recognising the marginalisation of many African youth (preambular paragraphs). This instrument deﬁnes youth or young people as referring to those between 15 and 35 years (deﬁnitions). Although a range of traditional rights and freedoms are explicitly deemed applicable to young people, the treaty also addresses some more sensitive issues, including participation rights3 and the need for ‘comprehensive and coherent’ national youth policies (Article 12). In keeping with pre-existing African regional documents, Article 26 reﬂects the agreed responsibilities of youth. These include young people being custodians of their own development, engaging in peer-to-peer education, rejecting and exposing corruption in work and respecting parents, elders and various elements of African culture, cohesion and unity. (Of considerable less relevance to the geographical focus of this paper, there is also an Ibero-American Convention on the Rights of Youth).4 Europe has also developed focuses on youth, both in the Council of Europe and the European Union. While many activities stimulate and promote active youth participation, others have resulted in more formal outcomes and international collaboration. Thus, in 2013 a meeting of the Council of Europe and the League of Arab States supported a meeting of Arab-Euro youth in Doha, Qatar. This resulted in the Doha Youth Declaration on Human Rights, Participation, Intercultural Dialogue.5 The Youth Department of the Council of Europe is part of the Directorate of Democratic Citizenship and Participation of the Council of Europe. Its emphasis and its activities, while covering a wide range, retain a focus on ensuring youth can be active citizens.
The Committee of Ministers recommendation (2006) 14: 1:
Recommends that the governments of member states: a. consider helping young people to be active citizens as a priority in public youth policies, and, in that respect, provide them with learning opportunities, including in their native language as appropriate, and experience that will increase their participation in public life.
The Council of Europe has also published a Revised European Charter on the Participation of Young People in Local and Regional Life, which does not have the status of a legally binding convention. This instrument draws on both the participatory provisions of the UN Convention on the Rights of the Child and work leading up to the 2005 European Year of Citizenship Through Education (EYCE). This instrument, and its follow-up reports, is beyond the scope of the present paper. The European Union also promotes youth involvement in policy discussions and more active citizenship participation, thus the 2014 EU Youth Conference, hosted by the Greek presidency, addressed the theme of youth entrepreneurship to foster social inclusion of young people. The conference made a number of recommendations which were fed into Council discussions and resolutions.
To report accurately the applicable age limits pertaining in each Commonwealth state for a range of activities would require a comprehensive review of national laws in each state. Where there is no written constitution or identiﬁable national law on youth, a plethora of laws may need to be consulted. In those common law jurisdictions, national judicial decisions may also be required. The scale of such a project is beyond the scope of the present paper. Rather, this paper seeks to present an approximate snapshot of prevailing age limits across the Commonwealth using a simpler doctrinal approach. This paper uses a single set of documentation which is available for all Commonwealth states—reports of the UN Committee on the Rights of the Child. As noted above, all UN member states are high contracting parties and thus all UN member states report periodically to the treaty monitoring body, the UN Committee on the Rights of the Child, on progress made towards realising the treaty provisions. The UN Convention on the Rights of the Child has provisions addressing, directly or indirectly, all the principal indicators selected for this study. It was thus possible to anticipate that a reasonably full set of documentation would emerge. There are, inevitably a number of ﬂaws in this method of data collection. First, the presence of data in the ﬁrst place depends on the matter having been discussed by the UN Committee on the Rights of the Child during the state reporting system. This is not always the case and we are aware that there are age limits in some states which do not appear in the table. Second, the data may be inaccurate and out of date. Owing to the backlog before the UN treaty bodies and the delays in submitting reports, the information is often outdated before the committee meeting. Moreover, some states have not been considered for several years. Once again, a number of errors are known but the data is presented as collected. Third, the authors are aware of a number of other anomalies in the presented data. This is inevitable when a single source is used for research such as this. However, it is contended that the ﬂaws are within an acceptable level of error because the use of the UN documentation permits an overview of the position (albeit possibly slightly historic and/or incomplete) in the Commonwealth. (There are also inconsistencies between the UN data presented on education and the number of mean years of schooling in each state which contributes to the education domain recorded in the Commonwealth Youth Index. The ranking for education and the ranking for the UN data would appear to offer different results.) The ﬁnal column in the table ranks the Commonwealth states on youth development. The 2013 Commonwealth Youth Development Index ranking is also provided for all countries where available (i.e. excluding Kiribati, Tuvalu and Nauru each of which had inadequate data available) (Commonwealth, 2013). The deﬁnition of youth development provided by this Commonwealth Index is:
enhancing the status of young people, empowering them to build on their competencies and capabilities for life. [Enabling] young people to contribute and beneﬁt from a politically stable, economically viable, and legally supportive environment, ensuring their full participation as active citizens in their countries. (Commonwealth, 2013, p. 14)
It is a composite index based on data available against 15 identiﬁed indicators under ﬁve key domains. The domains, identiﬁed for their importance in youth development, are: education, health and well-being, employment, civic participation and political participation. The aggregate data is then processed with each state given a ﬁnal score and thus ranked. Employment and education are the most relevant for the present paper, though the overall ranking score (across all domains) is provided in the table. It is perhaps unsurprising that Australia, Canada, New Zealand, Malta, the UK, Cyprus and Jamaica are the highest ranked states in terms of youth development. The lowest ranked states, with low youth development, are Uganda, Rwanda, Malawi, Swaziland, Saint Kitts and Nevis and Mozambique. All other states are categorised as medium youth development.
The results are subject to the caveats outlined in the Method section above. As a metaanalysis across a wide geographical area, the ﬁndings can stand even when some of the numerical data may be outdated or even inaccurate.
Age of Childhood?
Not all states specify the age at which childhood ends. In some instances, this is covered in national law or the Constitution, though not in the studied UN documentation. As Table 1 illustrates [see Round Table Journal], most Commonwealth states, where an age is speciﬁed, use 18 years. This certainly reﬂects the preferred minimum age for the end of childhood which the UN Committee on the Rights of the Child promotes (and the African Charter). Moreover, there is a general trend towards 18 as the age at which childhood ends (van Bueren, 1998, p. 38). This is borne out by comments made in the concluding observations of the UN Committee on the Rights of the Child in respect of those states with a lower age limit. Some states have not speciﬁed an age for this in the UN documentation used in this survey, though this does not mean there is no such speciﬁcation in national law.
The importance of the upper age of childhood becomes apparent when you consider its implications. Generally, those considered children beneﬁt from speciﬁc protective measures under national law and/or are deemed to lack some/all adult legal capacity. There is thus an implicit recognition of the need for special consideration below that age. Nevertheless, as the data shows, the speciﬁed upper age limits for childhood are often higher than other ages in the table. Thus in many states, those deemed legally to be children can marry, work full time and also have full criminal responsibility. It is notable that in some African states, the age limits across the activities noted are higher than the average in the Commonwealth, though it is not clear whether this can be attributed to the inﬂuence of the African Charter on the Rights and Welfare of the Child. Similarly, it is not clear from the data alone whether the law is observed in practice or whether social, religious, cultural or other factors may have an inﬂuence, for example on the age young people are employed—and in what capacity and context, the age at which they marry, and/or the justice system to which they may be subject.
Legal Capacity and Criminal Liability
As a whole, the Commonwealth states have lower ages of minimum criminal responsibility than the UN Committee would like. Indeed, Commonwealth states have some of the lowest ages of criminal responsibility in the world. Mauritius is one of the few states in the world with no minimum age, thus even an infant is deemed to have criminal responsibility (Cipriani, 2009). In contrast, the Bahamas, Cyprus, Rwanda and the Seychelles are among countries having the highest age for criminal liability across the Commonwealth, with the age of 14.
Some countries apply different age limits depending on the nature of the crime—for example, New Zealand. Other countries have a speciﬁc juvenile justice system through which most child offenders are processed— Scotland (within the UK) is a leading example, although somewhat paradoxically it has a very low age limit of eight years for criminal responsibility. McDiarmid (2013, pp. 148, 153) argues on the complexity of the concept of criminal responsibility, noting the importance of both understanding (what must be understood in order to impute criminal responsibility) and experience (the lived experience of the child and the impact exerted on understanding of wrongdoing). Clearly, setting any age limit in this context is arbitrary in so far as understanding is likely to vary from one individual to another, as will experience. Raising the age of criminal responsibility to 18 is, however, controversial. According to the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, ‘the Beijing Rules’, the age of criminal responsibility should ‘not be ﬁxed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity’ (UN, 1985, p. 4.1). Some research suggests full brain maturity for the purpose of criminal responsibility is only achieved after the age of 18 (Midson, 2012, discussing the mental acuity of adolescents who kill). Criminal responsibility is usually linked to the perceived understanding of wrongdoing, and consequential responsibility for actions and omissions. It is notable that the age limits speciﬁed for criminal responsibility in the table are generally the lowest of all the age limits listed. Children can thus be criminally liable for their actions for many years (sometimes even a decade) before they are deemed capable of consenting to sexual relations, consenting to marriage or working full time. Hollingsworth (2007, p. 196) argues that conferring criminal responsibility is a form of recognising and giving effect to the independent autonomy of the child. That autonomy seems to be conferrable for criminal responsibility but not for legal capacity is perhaps curious and the position of criminal responsibility contrasts with the ages of legal/contractual liability.
It is acknowledged that the ages given in the table are generally a stipulated full legal capacity, rather than contractual liability (after all people enter into contracts at a very young age—buying food or contracting for transport to school, for example). In general, the ages for legal capacity are above the minimum age of fulltime work. It might be hoped that this implies that some form of contractual capacity must exist for youth who are working. It may, however, be the case that the lack of contractual capacity or contractual autonomy conferred on the child means that others contract on their behalf. Whether the child can then escape those contractual obligation on ‘coming of contractual age’ is a question which goes beyond the scope of this paper.
Education, Marriage and Work
As far as international law is concerned, there is no speciﬁcation on the age of marriage. The 1962 Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages leaves discretion to the state on the age limit, albeit the General Assembly gave an early indication that 15 would be appropriate as a minimum age (GA Res 2018(XX) (1965), Principle II). Education, in contrast, should be compulsory and free for primary education (Article 13(20(1) International Covenant on Economic, Social and Cultural Rights 1966). Primary education, however, is deﬁned more by content than time (CESCR, 1999). As for work, the International Labour Organisation’s Convention concerning the Minimum Age for Admission to Employment 1973 has a general age limit of 15 years (18 for hazardous work).
As is apparent from the table, some states in the Commonwealth have age limits below 18 for work and/or for marriage. This is not per se illegal for those states not party to the treaties noted above. It does, however, as indicated above, create potential for the disruption or constraining of other rights of the child. Disparities between the minimum school leaving age, the minimum age for working full time and the minimum age of marriage are important (Tomasevski, 2003, p. 27). Should a young person marry or start full-time work, she or he is less likely to continue with compulsory schooling. The length of time for compulsory schooling varies from country to country, as the table shows. Should a young person be able to start full-time work before she or he should ﬁnish compulsory education, then clearly an economic imperative may limit the child’s access to education. Similarly, should a young person be able to marry and start a family before the end of compulsory schooling, that latter period of schooling may be compromised.
A lack of access to education inevitably can have an impact on employment opportunities. This in turn can affect earning potential, securing an adequate standard of living, and so on. Of course, there are also interesting variations and overlaps between the age of consensual sexual relations and the minimum age of marriage. In some states, sexual relations before marriage are forbidden, thus the ages are the same. It should also be noted that same-sex relationships are not necessarily subject to the same age limits. Same-sex relationships are criminalised in states such as Uganda and in all Commonwealth Paciﬁc states except Fiji. In South Africa, a higher age limit applies to same-sex consensual relations than otherwise. Canada has possibly the widest range of regulation in this area: the minimum age is usually 14 years with an exception when the younger partner is at least 12 years; the age difference between the partners is less than two years; the older partner is not in a position of trust or authority over the younger; and the younger partner is not the dependant of the older (UN Doc CRC/C/83/Add.6, para. 45).
Of particular concern is the frequent disparity in age limits between boy and girl children. In several states, females can marry at a younger age than males. The minimum age for consensual sexual relations is also different, sometimes with no age speciﬁed for males. This is clearly discrimination on grounds of sex, something that is prohibited in terms of Article 2(2) of the UN Convention on the Rights of the Child and Article 3 of the African Charter on the Rights and Welfare of the Child (where applicable). The UN Committee on the Rights of the Child inevitably draws to the attention of states any inequality in age limits. It is acknowledged that in the case of sexual relations, many states argue that the age limits for girl children are protective in their aim, given the potential consequences which may ensue. Quite who is controlling the reproductive rights of young women in these situations is perhaps more controversial. Within the Commonwealth Youth Development Index, drilling down to the data reveals that Pakistan, Singapore, Bangladesh, Indian then Tonga are the top ﬁve countries for employment, yet none is ranked highly on high youth development overall— though Singapore is eighth, thus the top medium development country overall (Commonwealth, 2013, p. 30). For education, New Zealand, Canada, Australia, Samoa and Cyprus are the top ﬁve on that domain alone (Commonwealth, 2013, p. 30). All except Samoa are in the high development ranking overall. This would appear to emphasise the importance of education to development, at least using the Commonwealth priority areas.
This paper shows that the legal construction of childhood and youth is ﬂexible within the Commonwealth. There is some evidence of a tendency towards using the UN Convention childhood upper age of 18 as the upper age of childhood. However, that is by no means uniform within the Commonwealth (or indeed beyond). As for youth as a separate construction, it is only in African states which accept the African Union Charter that youth rights are explicitly articulated.
Within the Commonwealth organisation, the designation of youth is more for data purposes than shaping laws and policies. Nevertheless, there is recognition of the importance of the youth demographic, both now and for the future development of states. Most states express concerns over youth unemployment, for example.
The rhetoric of the international instruments on securing the best for children and ensuring a secure future for young people is inﬂuential and, of course, pragmatic. States often prioritise children over adults—for example, the expenditure on education and on child health (there are numerous indicators and measurements of child health, not least in the millennium development goals). The disparity in ages within each country for the activities speciﬁed in the table arguably indicates an incoherent approach to youth issues across the Commonwealth. In many instances the laws have evolved piecemeal over the years with little attention paid to the interaction of the age limits, or a holistic approach to young people, or changing perceptions of childhood and youth.
While youth are recognised within the Commonwealth there is little evidence of the Commonwealth states taking a holistic approach towards reviewing and then where appropriate revising legal provisions to ensure consistency.
As the limited research used to inform this paper demonstrates, there is scope for much more detailed country by country research to inform an accurate and coherent understanding of the legal context of young people across the Commonwealth. In the meantime, perhaps consideration could be given to the better promotion of youth rights and applicable laws so that not only can every young person in the Commonwealth understand which age limits apply to her or him and why, but also so that the voices of young people can be engaged in the discussions that attach to the possibilities of reforming the laws which govern their lives.