THE CHILD PROTECTION ACT OF 1912 AND THE LEGAL STATUS OF JUVENILES
From the beginning of the twentieth century, with the Child Protection Act of 1912, delinquent children and juveniles became separated from their adult counterparts. As contrasted to adults, the Belgian child protection system becomes underpinned by the idea that children should be protected and (re)educated rather than punished. The main purpose of juvenile justice is to reintegrate and to rehabilitate. Within this protection or welfare model, young offenders are not considered to be responsible for their acts; rather the offences they commit are considered to be symptoms of underlying problems. As a consequence, interventions of the Juvenile Court were not grounded on the offences and on the principle of proportionality, but on the young offender’s personality and social context. Instead of punishments, protective measures were imposed “in the best interest of the child” (Christiaens 1999).
From the beginning of the twentieth century, young offenders were tried by a special court (kinderrechtbank) and a specialised judge (kinderrechter). It is important to stress that this early child protection system concerned not only young offenders (under the age of 16) but also minors who were considered to be in danger because of their pre-delinquent or bad behaviour. Different age groups were covered by the Belgium juvenile justice system at the beginning of the twentieth century: under the age of 16 for young offenders and pre-delinquent youngsters, and under the age of 18 for badly behaving children, whose parents could file a complaint to the Juvenile Court, or for children who were found begging or in vagrancy. Consistent with the welfare and protection philosophy, Belgian youngsters were (theoretically) not punished but were re-educated through protection measures or welfare sanctions (Garland, 1981). Until 1965, young offenders over the age of 16 were prosecuted before (adult) penal courts. Protection measures provided by the Child Protection Act of 1912 consisted of (1) admonition (2) placement of the minor in public as well as private facilities and/or placement in a foster family and (3) custody at Her Majesty’s pleasure (terbeschikkingstell- ing) until majority, which made detention in public “closed institutions” possible. Finally, every protective measure imposed by the juvenile justice court could be associated with the probationary measure of liberte surveille, an important innovation of the 1912 Child Protection Act. Notwithstanding the new welfare approach, the Belgian Child Protection Act of 1912 did not totally abolish detention in prison for children under 16 years of age. In exceptional cases these children could be placed in adult prisons during the pretrial phase.
Finally, the Belgian Child Protection Act of 1912, based upon the welfare model, introduced a new, specialised and unique judge, and a procedural model that confirmed the “paternal” role of this magistrate. Within the Belgian juvenile justice system the same judge handles the case throughout the procedure (pretrial phase, trial and execution of measures). This can be seen up to the present as one of the key characteristics of the juvenile justice system.