Exploiting age: the risk of ignoring agency

In the shadow of recent child exploitation cases in the UK, policymakers have turned their attention to a spate of issues affecting vulnerable children, as Jeni Page highlighted in her post on children residing in state care homes. In conjunction, violence and exploitation experienced by teenagers is becoming more visible. Consideration has been given to an expanded definition of domestic violence, which now includes teenagers, in recognition of the types of partner violence they face, as well as the failings of the child protection system to older children. Recently, a High Court ruling, in HC (A Child,), R (on the application of) v Secretary of State for the Home Department & Anor [2013] EWHC 982 (Admin) (25 April 2013) addressed the practice of treating 17-year-old child suspects as adults in police stations. It also addressed the refusal by the Secretary of State to amend the relevant Police Code that enabled this treatment, despite the fact that such treatment is inconsistent with the UN Convention on the Rights of the Child (CRC) and s.11 of the Children Act 2004, which recognizes the need to safeguard and promote the welfare of those under 18.

Violence tends to be categorically experienced by children or adults, lacking an examination of the continuity of the experience of violence across age. But the problems of vulnerable children are not always clearly demarcated by age or type of abuse, complicating risk management and protection. Tension exists in distinguishing between children and adults, especially as this relates to their roles as victims and perpetrators. For instance, regarding the child protection system, the Education Select Committee reported, “childcare professionals needed to understand that a teenager could be a vulnerable ‘child in need’ just as much as a young child.” And, in recognizing the disconnect between child protection and immigration policies, “trafficked children found in criminal settings must always be treated as victims and children first, and not just as criminals”.

Under international and domestic law, minors are afforded enhanced protections because it is assumed they have enhanced vulnerability and limited capacity to make decisions. Age provides us with a legal distinction for that protection. Granted, age comes with its own, rarely acknowledged, complications, such as the assumption that age is easily verifiable. For instance, given situations in which the age of a child cannot be assessed due to inaccessible, verifiable forms of official documentation (such as birth certificates). For trafficked minors, age verification may be subject to manipulation by traffickers and recruitment agents.

In any case, under the criminal justice system, age serves as a marker of culpability and accountability to crime. Much like their adult counterparts, adolescents are classed as either victims or offenders; but are, in some cases, both. Older children in particular may face discrimination because they may appear (physically, emotionally) adult, which may result in the practice of treating minors as adults without affording them protections granted to children under the law, such as in the aforementioned case regarding 17 year olds.

The focus on responsibility – who is deserving or not deserving of protection (or punishment) – colors the responses of service providers. Subsequently, minors may not be afforded credibility as witnesses or victims. Equality Now argues that current legal systems globally remain inadequate in protecting the rights of adolescent girls. As shown in their recent report, girls are often unaware of their rights or how to exercise them, in addition to “the fear of stigma, not being believed or being blamed for abuse; further victimisation of girls by the justice system; and a lack of tailored support services.” Similar claims about credibility have been made in the UK by victims of exploitation in Oxford, which resulted in inaction by police and social services. According to the Children’s Commissioner’s Inquiry into Child Sexual Exploitation in Gangs and Groups:

Children and young people who were being sexually exploited were frequently described by professionals in many localities as being “promiscuous”, “liking the glamour”, engaging in “risky behaviour” and being generally badly behaved. Some of the most common phrases used to describe the young person’s behaviour were: “prostituting herself”, “sexually available” and “asking for it”.

Undermining service provision, these perspectives imply that “children are complicit in, and responsible for, their own abuse.” In other cases, police have been accused of selectively using victim claims to support criminal proceedings.

Much-undervalued is the role of agency.

The relationship between children, agency and evolving capacities within this context may seem a bit amorphous. Presumptions made regarding the capacity of children ignore decisions those minors make regarding their own risk. The agency inherent in personal risk management by children is a concept often overlooked. In other words, the ability of a minor to make, and act, on a decision is affected by an individual’s understanding of the consequences of his or her actions. In the case of risk, some children, particularly older children, may make decisions to mitigate or avoid perceived danger or vulnerability. For instance, on one hand, adolescents may undertake dangerous employment to seeking familial financial security; on the other, they may take steps to avoid risk by not reporting crime they have experienced. This is not to say that acknowledging such agency absolves the State of its responsibility to protect victims of violence and exploitation. The duty to protect should not be mitigated by individual choice. Rather, understanding the processes through which children negotiate risk would inform policymaking concerned about protecting the best interests of children.

For example, in 2010 Race on the Agenda (ROTA) published Female Voice in Violence, relating to the experiences of gang-affected females in London. While the report intended to cover women and girls of all ages, the majority of participants were aged 19 and younger. The findings highlighted several structural inhibitors to seeking assistance by victims of youth violence. These included a lack of confidence in support services, if known, to provide confidential and anonymous support:

Participants repeatedly raised the concern that seeking support could expose them to risk, as well as their family members, partners or other children, in the form of reprisals. Given this concern, the police were often seen as a potential risk factor, and not a support service generally open to those who were gang-affected.

In the UK, public authorities, from social workers to teachers, are legally obliged to report sexual violence if the victim is a minor. Young women in the study were often aware of, if not personally affected by, sexual violence; they were also aware of this safeguarding duty to report and actively took steps to avoid disclosing such information in an effort to mitigate their own risk. For instance, a young woman would not report an incidence of rape to a counselor (or a researcher for that matter) because that incident would have to be reported to police. In addition to a lack of known available specialist support services, individuals feared an amplified risk of violence through the form of reprisals. Complicating these decisions, even if a young woman chose to report such violence, many services are not capable of managing this kind of risk (i.e. domestic violence shelters are not often equipped to deal with gang violence) and social services are far from being engaged in flawless systemized communication.

Where possible, policy should be directly informed by affected young people. Existing policies disregarding their agency may result in ineffective protection for victims. Promoting agency in empowerment strategies to address prevention of exploitation should go beyond asking if children can or should make informed choices, to recognizing that minors do make (risky) decisions and how the direct participation by those individuals in policymaking could enhance policy and thus, improve protections. To do so would enlighten stakeholder understanding of various forms of exploitation and, arguably, increase the efficacy of current criminal justice responses as well as prevention strategies. It would also assist in evaluating processes in place to support the needs of exploited minors, including barriers to service provision and continuity of experience (of exploitation as well as service provision) across age.