It is a fundamental principle of criminal law that a person should not be criminalised unless they have the capacity and a fair opportunity to comply with the law. Recognising that children, particularly younger ones, undergo rapidly evolving neurodevelopmental processes during which their criminal capacity remains underdeveloped, many jurisdictions have adopted a minimum age of criminal responsibility. Furthermore, the presumption of doli incapax is available in some jurisdictions to protect children who fail to understand the wrongfulness of their acts from being criminalised. While both protections are useful, this article argues that they are insufficient in fully protecting unblameworthy children from criminalisation. It is proposed that, from both neuroscientific and criminal law perspectives, a child immaturity defence should be introduced to protect children who (i) lack the capacity to appreciate the nature or consequences of their criminal conduct or (ii) are unable to exercise adequate control over that conduct. The potential challenges in enacting the defence will also be examined.
This paper challenges the binary between childhood victimhood and offending by examining the overlapping and often contradictory roles children occupy within systems of law, social control, and public discourse. Focusing on Spain and Sweden, the paper examines the non-punishment principle and gaps in domestic implementation that leave some children, particularly unaccompanied migrant boys, vulnerable to criminalisation. Adopting a humanitarian lens, it situates institutional responses within broader concerns for children's dignity, rights, and protection. The analysis highlights how legislative frameworks and prosecutorial practices shape victim recognition and reinforce barriers for children whose experiences fall outside dominant narratives.
Maternal crimes against children have been, and continue to be, the subject of fascination, fear and disbelief. This article critically examines the role of the media and the law in reflecting and reinforcing normative expectations of femininity and motherhood by interrogating the media reporting on Kathleen Folbigg's case from 2001-2023. Existing theoretical accounts of the conceptualisation of female deviance, as well as the ways the media and legal systems intersect and influence one another to create dual sites where gender inequality is reproduced, are first examined. Against this background, the news reporting over the more than twenty-year span of Kathleen Folbigg's case, from her trial in 2003 through to the aftermath of her pardon in 2023, serves as a case study to consider whether any changes in the operation of dominant norms can be identified. This article critically examines the use of the 'mother frame' as a persuasive narrative frame that, despite changing legal outcomes, remains firmly in place. While Folbigg was able to be repositioned within this frame, even positive media coverage acted to reinforce the gendered norms and expectations attached to female defendants.
The wrongful conviction of Kathleen Folbigg, who spent over 20 years in custody, is unarguably one of Australia's worst, acknowledged, miscarriages of justice. This special issue considers the implications of the Folbigg 'case', including opportunities missed to correct the flawed convictions, the continuing role of gendered ideologies that supported and maintained her convictions, and institutional failures in the judicial and executive branches of government. In addition to outlining some of the common themes and concerns of the authors who have contributed to this special issue, this introduction provides necessarily brief overview of the timeline and procedural history of the case. The timeline draws attention to comparable cases from other jurisdictions where mothers were wrongfully convicted of harming their children, but where errors were identified and corrected far more quickly. The introduction concludes by reiterating the need for reforms to provide independent review mechanisms to identify and correct errors in the Australian criminal legal system.
