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CONCLUSIONS: CURRENT DEBATES AND CHALLENGES
In 2006 Belgium saw its “old” Youth Protection Act of 1965 modernised into a hybrid model of welfare, restorative justice and “just desert”. Politicians and field workers seemed more or less satisfied that the reform of the old Act of 1965 had finally been achieved without too much damage. After all, the welfare model and the old Youth Protection Act of 1965 remain the basis of the new Youth Justice Act. At the same time, however, proponents of, on the one hand, restorative justice and, on the other hand, tough (penal) approaches can hardly be described as the “losers” of this 2006 reform.
On the contrary, restorative justice approaches, following the new sentencing guidelines in the Youth Justice Act of 2006, receive the “gold medal” for prefer?able judicial approaches towards juvenile delinquency. And (political) proponents of tough approaches have encouraged a notable enlargement of (often highly secured) youth detention capacity (as a means to detain youngsters on remand and/or for transferred youngsters). Moreover, the “modernisation” of the old Protection Act of 1965 managed to sail around many fundamental questions and critiques on the Belgian youth justice system.
A first fundamental question remains the respect for children’s rights. In this sense we specifically want to stress, on the one hand, the continuing importance in law and in practice of the pretrial phase as the “decisive phase” and the tensions this brings with fundamental human and children’s rights. On the other hand, the new Act of 2006 did not take any steps either towards improving the legal position of juveniles deprived of their liberty (e.g. lack of right to formally complain). Finally, the continuing (political) support and encouragement for the transfer of minors can hardly be regarded as in concordance with the UN Convention on the Rights of the Child.
Secondly, we notice the continuing policy and practice of mingling delinquent and non-delinquent children in the youth protection system, even in closed (Flemish) community institutions. The reform of 2006 did not even try to go into this question. Moreover, huge societal and scientific attention for punitive trends towards delinquent children does not have to divert our attention from the important presence of “problematic” (but non-delinquent) children within the juvenile protection system. Are these children also to be confronted with punitive tendencies? Within this perspective it is noteworthy to mention that in 1999 (and in 2004 and 2013) the federal parliament passed an Act that regulated the possibility for local authorities to sanction in an administrative and speedy way “incivilities” of adults and youngsters. Research is needed to unravel the influence of this new legislation on the sanctioning practice towards (non-delinquent) juveniles and its relation to the youth protection system. After all, pursuant to legislation from the French and the Flemish communities, “problematic behaviour” by youngsters (like “incivilities”) should normally be handled by the juvenile protection system on the basis of welfare-oriented principles and in the best interests of the child.
Finally, the governmental authorities in Belgium, and there are many of them, show an obstinate incapacity to collect and centralise statistical data on the phenomena of youth delinquency and on the reactions of the youth protection and the juvenile justice systems. This situation turns any scientific research on the Belgian youth justice system’s practice into a hazardous enterprise. Within this context, governmental policy like increasing residential capacity seems anything but evidence based.
However, with the recent state reform, the Flemish and French communities will be able to take a new direction. There might be a new opportunity to create a more coherent and transparent juvenile justice legislation guided and inspired by a children’s rights approach. However, on the basis of available governmental documents, such major transformations are not in sight yet.
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