Won’t someone think of the children?

Bangladesh ratified the United Nations Committee on the Rights of Child -UNCRC (1989) all the way back in 1990, and Article 40.3 of the Convention defines the minimum age of criminal responsibility (MACR) as “the age below which a person is completely immune from any criminal liability due to lack of maturity and judgment to understand the consequences of one's actions.” The age is below the MACR (12 years or higher) as recommended by the UNCRC. At present, in Bangladesh, the MACR is nine years which is below the recommended age by the Convention.

In recent years, there have been a number of initiatives taken by the Bangladesh government to ensure the disparate treatment of children under the justice system. In 2004, Bangladesh raised the MACR from seven to nine after almost 14 years after it had ratified the UNCRC. As a part of it, the government has enacted the Children Act 2013 (amended 2018) repealing the Children Act 1974. However, in Bangladesh the MACR remains nine, as per Section 82 of the Penal Code 1860. This means children under the age of nine cannot be charged with and sentenced for committing any given offense.
With juvenile crimes coming to the attention of police in Bangladesh over the last decade or so, the numbers of children entering justice systems has also increased. According to the available statistics of the Department of Social Services (2024) in three Child Development Centres, many children -- particularly girls -- are sent and detained under the justice system for committing minor offenses (eg running away from home, underaged marriage, theft, shoplifting, and brawling). Evidence shows that in May 2024, there were almost 939 children (both girls and boys) in the three CDCs, and a considerable number of children below the age of 12 who have been detained or sent to these centres before their 12th birthday. If the MACR was to be increased, the recidivism rate would drop considerably among children.
In 2015, the UN Committee on the Rights of the Child expressed concerns about the Children Act (2013) not to specify MACRC. The Committee has reiterated its previous that the minimum age of criminal responsibility (9) is still very low. The committee recommended to raise the minimum age of criminal responsibility to an internationally acceptable standard. Bangladesh has not taken any further initiative to increase the MACR after 2004, reports DT.
In total, 196 countries have signed up to the UNCRC and the MACR of children varies among them while some countries are in the process of increasing the age. This age of children varies among South Asian countries, for example in Nepal, Bhutan, Afghanistan and Sri Lanka this ages are 10, 10, 12, and 12 respectively. In India, the present age of criminal responsibility is seven years. In India an offense committed by the child of age between seven years and 12 years will not be punishable if the judge is of the opinion that the child is not mature enough to understand the consequences of his actions.
Bangladesh raised the age in 2004 but still there is a continuous pressure from the United Nations to raise the age to protect children’s rights. Due to rising criminal offenses, particularly by children and young people, few countries have lowered the MACR, and many have considered doing the same. In contrast, some countries have increased the MACR to comply with the UNCRC.
In my opinion, increasing the threshold of age by amending this Act would protect many children, particularly those who commit minor offenses and/or those who commit offenses without understanding the consequences. Many NGOs advocate for increasing the MACR, but the government is not taking any visible initiatives to do so. In order to ensure a welfare-based justice approach rather than a punitive approach, the government should focus on the needs of the children rather than their deeds.
Like other countries, the principle of doli incapax which is a rebuttable presumption that children aged 10-13 years (inclusive) lack the capacity to form criminal intent, should be clearly stipulated in existing acts and legislations to ensure the safeguard of the children. Research shows that brain development, particularly the synaptic pruning in the prefrontal cortex, occurs between 20 and 30 years of age. This means that children above between nine and below 12 are not of sufficient maturity to understand the consequences of their deeds.
In Bangladesh, there has been a sharp rise in crimes committed by children or young people. However, it is important to understand how the children are being treated under the justice system once they come under the justice system as a first-time offender. It is important to take the decision or make the changes based on evidence rather than focusing on public sentiment to be tough on offenses committed by children.
Bangladesh should be fully in tune with the ratified convention to ensure the best interests of the children who come in conflict with the law. Welfare approach should be adopted for the care and protection of the children. The justice system should take into consideration how committing offenses by children is not related to their brain development. If the MCRC is increased then many children will not come into the deep end of the system.
Bangladesh should increase the MACR to 12 so that there should be a child-oriented justice system in Bangladesh. This will ensure the well-being and best interests of children in conflict with the laws by increasing the MACR. Many INGOs, as well as local human rights organizations, have started asking the government to amend the existing law to comply with the global best practices on children’s rights protection.
Bangladesh should change the policy and take initiative to increase the MCRC based on evidence to protect the children from doing further offense and being stigmatized with an ultimate aim to ensure their best interests.
Shilpi Rani Dey PhD is Associate Professor, Department of Social Work, Jagannath University. She can be reached at shilpi_dy@yahoo.com.