In much of Australia, children as young as 10 can be convicted and jailed. Legal experts, human rights activists and politicians are locked in endless debate about whether it’s right to lock up our kids. Reporter Glenn Morrison asks what science has to say about the issue.
Roughly 40% of the size it will reach by adulthood, the human brain at birth is short of a few important connections.
Think of them as your brain’s ‘wiring’, a neural network that will eventually allow you to walk, talk, reason, connect one thought to the next, even shape an argument.
In fact, your brain at this age is something of ‘a paradox’, writes Dr Frances E. Jensen, professor of neurology at Perelman School of Medicine University of Pennsylvania, author of The Teenage Brain.
Arriving with an overabundance of grey matter – akin to a biological ‘hard drive’ – the newborn brain suffers an undersupply of white matter, that same ‘wiring’ that will ultimately ferry information between its parts.
By adolescence, Jensen suggests, the brain is like a brand-new Ferrari, primed and pumped but not yet road tested. “In other words, all revved up but doesn’t quite know where to go,” she says.
These few important years, perhaps life’s most challenging, are often called a “coming of age”, or puberty.
Puberty’s biological push toward adulthood starts from ages 8 to 10 years, bringing new behavioural effects over the next few years that are profound.
For as any parent knows, adolescents can sometimes look and occasionally act as if they are already adults. But they are not.
Experts disagree whether by age 10 a child can tell right from wrong. Yet 10 years is exactly the age one might currently be tried and jailed under a 1963 ruling on an Australian minimum age for criminality.
According to Australian Bureau of Statistic figures, some 600 children under 14 are locked up every year. Indigenous Australians, comprising less than 3% of our population, nonetheless account for more than half of these juvenile detainees.
Yet important scientific questions remain unanswered about incarcerating youngsters and their arguably ‘L-plated’ brains.
Anglo-Australian jurisprudence demands defendants be competent to stand trial, meaning, according to the Australian Law Reform Commission, to have “sufficient mental or intellectual capacity to understand (court) proceedings or make a defence”.
Does a 10-year-old child have that? Or are we demanding levels of understanding their young brains cannot yet achieve?
And if they cannot, why is Australia incarcerating 10-year-olds given the United Nations Committee on the Rights of the Child sets 14 as an absolute minimum?
Furthermore, what consideration might be granted for the effects of disability? Trauma? Disadvantage?
Might incarceration itself make matters worse? And why are Indigenous youngsters more at risk?
The growing brain
The human organ closest to the heart of this debate sits atop the spinal cord.
Light grey in colour and of a consistency Jensen describes as between “overcooked pasta and jelly”, its birth weight averages 350-400g growing to 1.3kg for an adult man, slightly less for a woman.
As an area of study, the teen brain was until recently underfunded and under researched and so remained poorly understood.
Even the idea of a ‘teenager’ is relatively new, the word first appearing in a 1941 magazine article.
Many thought brain growth pretty much done by kindergarten, the whole thing explainable from then on through a prism of adult neurobiology.
Rather, puberty is our brain’s engine of change. And it ignites in upper primary school, says paediatrician and inaugural chair of Adolescent Health at The University of Melbourne, Professor Susan Sawyer.
“What we call adrenarche or activation of the adrenal gland is the earliest feature of puberty,” Sawyer says.
“It occurs around age 8-9 years, before the timing of the sex hormones of oestrogen and testosterone that lead to what we call the secondary sexual characteristics and accompanying growth spurt of puberty.”
With external changes spanning 5 or 6 years, puberty arrives earlier in girls than boys, Sawyer says. And its onset sparks dramatic change, including maturation of the brain’s cognitive aspects, executive functions like forward planning, which continue developing through the mid-20s.
And the order in which parts of the brain develop in this race to adulthood is significant, with its wiring connecting first from the back of the skull, says Jensen.
At the back are brain structures to deal with immediate needs: regulate vision, hearing, balance, touch and sense of space. These structures get first dibs on connectivity, via the cerebellum at the back (balance and coordination), also the thalamus (relaying sensory signals) and hypothalamus (command central for hunger, thirst, sex and aggression).
However, those parts of the brain where actions are weighed, situations judged and decisions made, sit behind the forehead in the frontal lobes. They mature later.
What will my mates say?
It is significant the frontal lobes governing ‘adult’ thinking develop last.
The matter leads Jensen to counsel parents to “be your teen’s frontal lobes until their brains are fully wired and hooked up and ready to go on their own”.
For without working executive functions, adolescence is a potential minefield. And such context is crucial to judging criminality in children aged 10 to 14 who encounter Australia’s youth justice system.
Might they understand courtroom proceedings? Be capable of rationalising crime and punishment?
Turns out, says Sawyer, young brains are occupied with social comparison and social shame.
“For some, that’s wanting the latest jeans or top or shoes; this is about social status … if you don’t have that then you don’t cut it with your mates.”
Puberty sparks “increased sensation seeking and impulsive behaviours”, she says, the brain structures that process such emotions having already started to mature “in a part of the midbrain called the ventral striatum, which is involved in reward and motivation”.
“The part that lights up when you’re on a rollercoaster, for example. And the amygdala, which encodes for fear and stress.”
Nonetheless, even at this age “children can tell right from wrong,” Sawyer asserts, then quickly adds, but that is not the right question to ask.
“In the heat of the moment many young people are not thinking about whether things are right or wrong, but rather what their mates will say … it’s that ability to make decisions in the context of their peers.”
Nevertheless, if risk taking and sensation seeking intersect with the justice system, how might we judge any degree of criminality?
That should depend intimately on the science, argues forensic psychiatrist Yolisha Singh, who assesses young offenders due to come before the courts.
In her 2023 paper entitled ‘Old enough to offend but not to buy a hamster’, published in the Journal of Psychiatry, Psychology and Law, Singh brands Australia’s current threshold of criminality “unscientific”.
“Science proves unequivocally that adolescents aged below 14 have under-developed brains,” she writes.
Singh points to puberty’s remodelling of the system that regulates our supply of dopamine, a neurotransmitter playing a “critical role in the brain’s reward circuitry”.
“Dopaminergic activity in the prefrontal cortex increases significantly in early adolescence and is highest in this period.”
Importantly, adolescent structural changes occur in sectors crucial to telling right from wrong.
Singh points to the process called myelination, whereby a fatty layer called myelin is deposited around nerve cells allowing them to transmit information more swiftly, resulting in improved thinking.
However, not everyone agrees a 10-year-old cannot tell right from wrong.
In fact, the converse has broad appeal, says Tim Bateman, reader in Youth Justice at University of Bedfordshire. And underpins common aphorisms such as ‘adult crime, adult time’.
In a paper for UK’s Centre for Crime and Justice Studies, Bateman argues a 10-year-old who knows right from wrong accords with the experience of many parents, and many young people exhibit ‘older’ knowledge much earlier.
“But the argument involves a categorical error,” Bateman writes. “Acquiring a moral understanding is not like learning to walk, a once-and-for-all achievement; it is rather a skill that improves incrementally over an extended period.”
And a child’s reasoning is inherently different from an adult’s, he argues.
“Just as we would not expect an infant who has grasped the rudiments of arithmetic to solve quadratic equations, so too a primary school child who understands that damaging property is ‘wrong’ is not manifesting an ethical stance that would properly qualify him or her for jury service.” So how to gauge legal standing for a 10-year-old? And how does a criminality threshold, whether 10 or 14 years, relate to brain science?
The minimum age of criminal responsibility
Science tells us the teenage brain is a work in progress. That’s clear.
But exactly how much consideration is due a child who commits a crime?
Australia’s primary legal barrier to criminalisation is called the Minimum Age of Criminal Responsibility, or MACR.
Compared with a global median of 14, Australia’s MACR of 10 ranks alongside Syria, Bhutan, Cameroon, Malaysia and Nepal.
Given science argues a brain younger than 14 years cannot readily comprehend jurisprudence, Australia’s incarcerating of 10-year-olds attracts strident criticism from the UN and considerable pressure from Australian health and legal experts to raise the MACR.
Currently, Australian law rules only a child under 10 years is incapable of committing an offence, as “they are not criminally responsible for (it)”.
Where does that leave 10- to 14-year-olds?
And what of Indigenous children, who are adversely affected by Australia’s low MACR, asks researcher Chris Cuneen, of Jumbunna Institute for Indigenous Education and Research.
In a 2020 report Arguments for Raising the MACR, Cuneen suggests that before jailing such young offenders we must first assess their mental health, prior trauma, potential harms from incarceration, hidden disabilities, and intergenerational effects of colonisation.
But politics looms large at the heart of Australia’s youth crime issues. And community attitudes often hold sway politically.
Alice Springs: a case study
Some 28,000 people live in Alice Springs/Mparntwe at Australia’s heart, 5000 of them Aboriginal. All are divided over youth crime.
The long-standing issue rose again to national prominence for our Outback capital in 2022, during a shocking crime wave that saw extra police flown to the town from interstate.
Widely reported nationally, gangs of young children were roaming the town’s main shopping and tourist precinct late at night, spitting at passers-by, throwing rocks, breaking windows, stealing, sniffing volatile substances.
Kids as young as 10 or 11 were seen stealing cars, hooning around in them and driving head-on at police, baiting them into pursuits. All while live streaming.
The situation had worsened after legislated dry area alcohol restrictions expired in July 2022.
As a result, alcohol-related assaults and domestic violence that year rose by more than two thirds, 1800 homes and businesses were broken into, and more than 400 cars stolen.
Local security patrols of Aboriginal elders stepped in to walk the town’s main shopping precinct at night. Police twice enforced government-mandated youth curfews during 2024.
But the youngsters know their rights. Even when caught, police can only take them to a safe place or responsible adult.
Many are frustrated the kids “get away with murder”, including Aboriginal crime victims who call for perpetrators to be jailed.
Aboriginal Labor MP for Lingiari Marion Scrymgour, for example, has many times demanded a rethink on youth crime, lamenting to the media that people in Alice were “under siege in their own homes”.
“You can’t just keep grabbing these kids and taking them home, because there’s a real problem at home,” Scrymgour told the ABC. “A lot of them … once the police leave, they’re back out on the street again with their friends.”
During the social chaos of summer 2022, the Northern Territory Labor government raised the MACR from 10 years to 12, the first Australian jurisdiction to do so. Youth justice advocates applauded.
In mid-2024 the Australian Human Rights Commission recommended raising the MACR to 14 years, and the (still) NT Labor government concurred.
By October 2024, however, Territory voters had dumped Labor for the Country Liberals, who promised “tough on crime” policies and to lower the MACR from 12 back to 10.
The new government flooded Alice Springs with police.
Arrests skyrocketed and prisoner numbers climbed – by March the NT had topped the nation for having incarcerated more than 1% of its residents. Were the NT a country, wrote one ABC reporter, it would be second only to El Salvador.
The NT Law Society condemned the MACR lowering. Australian Law Council president Greg McIntyre was concerned for First Nations children, his fears confirmed when a census later revealed that 100% of NT juveniles in detention were Aboriginal.
Most if not all the youngsters were from disadvantaged backgrounds, and had, as Cuneen’s research argues, “complex needs better addressed outside the criminal justice system”.
Critics of the “soft-on-crime” approach nonetheless point to an existing “default legal protection” for the under-14s. Lawyers call it doli incapax, a presumption that the youngsters can’t be held responsible for criminal offending because they’re not aware their behaviour is seriously wrong.
The presumption is rebuttable, in other words proving the child knew what they were doing can still result in imprisonment.
But in practice, this is rare. In February, for instance, NT police confirmed only one 11-year-old child had been arrested at Alice Springs since October, and was let go with a warning.
Still, between July 2021 and June 2024, 14 children aged 10 or 11 were remanded to youth detention 49 times (some more than once), the NT Government says.
Some argue doli incapax demonstrates the system is not oblivious to children’s needs. Others how the system is still failing them.
Many frame incarcerating 10 to 14-year-olds as a way of “protecting the public”.
“We see this everywhere throughout the world,” says Sawyer, who wonders whether “the children themselves might not also be thought of as victims”.
“We know they’re more likely than kids not in trouble with the law to come from highly disadvantaged families … to have developmental disabilities, acquired brain injury or even intellectual disability, ADHD, autistic spectrum disorder.
“Or (are) under child welfare, living in an out-of-home context, Indigenous, or have foetal alcohol syndrome.”
Incarceration and neurodisability
Does incarcerating youngsters “protect the public”? Or make matters worse for young offenders?
The latter was the clear result from a 2013 review of relevant research since 2000 in Clinical Psychology Review by Professor Ian Lambie and psychologist Isabel Randell, of the University of Auckland.
The worsening effects of incarceration often related to pre-existing health and mental health conditions, including neurodisability. Troublingly, research on prior incidence of neurodisability among NT juvenile offenders is scant.
One study, by Sydney based lawyer Clement Ng who previously worked in Darwin and Alice Springs courts, is being finalised as a UNSW PhD “The Criminalisation of Neurodisability in the NT Juvenile Justice System”.
At the 2023 NT Children’s Court Conference Ng presented preliminary findings from court records of 189 juveniles who came through the Darwin Children’s Court during 2021 and 2022.
“Seventy-one of the 189 juveniles (38%) were diagnosed with at least one neurodisability, including 33 females,” Ng told Cosmos.
“Thirty juveniles had FASD [Foetal Alcohol Spectrum Disorder] and 28 had intellectual disability. Almost half with neurodisability had more than one neurodisability.”
Similarly, the Don Dale Royal Commission found “56% of juveniles with prior detention who gave evidence had FASD and 31% some form of brain injury”, says Ng.
Recently FASD has been receiving more attention. Again, NT research is scant. Widely cited, however, is a 2017 study by Carol Bower et al of 99 juveniles detained at Banksia Hill Detention Centre in Western Australia.
The research found 88 youngsters (89%) had at least one neurodevelopmental impairment and 36 had FASD (36%), suggesting both FASD’s high prevalence and how authorities failed to identify the cases prior to incarceration.
In Alice Springs, FASD rates reportedly mirror Bower’s, though estimates vary, and no published research is available.
Dr James Dowler is an experienced paediatrician working in FASD diagnostics and management in Alice Springs and surrounding communities and explains that FASD can result when alcohol is consumed during pregnancy.
“FASD itself is a brain injury that occurs in utero,” Dowler says. “In some cases, babies come out and they’re (not) feeding, they have small heads, they have different facial features and are clearly delayed from the outset.
“(Conversely), you have babies who grow and develop normally but when they reach childhood there are defects in brain development, in their executive function, cognition, decision making.”
Almost invariably there is co-occurring trauma, he says, along with depression and anxiety.
“You have all these compounding aspects, so it’s not a pure diagnosis (of FASD) at any point.
“Unless you catch it early and it’s severe, then you can say: ‘Oh it’s all alcohol that’s done this’.”
Many don’t end up being FASD, says Dowler, though diagnosis becomes easier as children get older.
“As the brain develops differently into adolescence, that’s when you see the clearer things.”
Dowler says more attention is now paid to FASD than five years ago, “leading to more diagnosis and assessment.
“But we’re going in that direction rather than supporting young mothers, solving overcrowding, domestic violence … it’s a little frustrating.”
No easy answers
For adult perpetrators, incarceration remains Australia’s go to response.
For troubled 10- to 14-year-olds the way forward remains complicated, even elusive perhaps. Yet the science is clear. Many might say the horse has already bolted. Meantime, Indigenous children remain most affected.
Considered one of Australia’s most experienced Aboriginal Controlled Health Services, Congress suggests the vast majority (more than 80%) of young people in detention have “an undiagnosed or inaccurately diagnosed neurodevelopment disorder and have often had involvement with child protection services”.
Last year, in a submission to the Inquiry into Australia’s Youth Justice and Incarceration System, Congress pointed to emerging solutions beyond incarceration.
Its 21 recommendations, all evidence based, aim to help Indigenous children and their families avoid the youth justice system.
Nonethless, the submission put matters plainly: “There are young people being criminalised for their disability whereby they cognitively could not understand the severity and consequences of their behaviour.”
Science suggests consideration for such youngsters is warranted. And lessons learned in the Indigenous sector and the Red Centre may help more broadly across the country.
Perhaps only time will tell whether, in Australia, all or any of this can translate into policy.
Glenn Morrison is an award-winning journalist, researcher and author who has written of Australia’s Centre and North for more than 25 years.