This is the third article of the series “Questions we don’t dare to ask”. You can read the introduction to the series, and the first article, Siri Kemény's critical reflections on the role of the mediator here and Judah Oudshoorn's considerations about our understanding of the foundations of restorative justice here.
This article is based upon a chapter that I wrote in a book edited by Annemieke Wolthuis and myself (1). The book is about the relationship between restorative justice and children’s rights. It attempts to have a global scope. It reviews international documents and describes legislation and practices in Europe, Africa, Asia, Latin America, North America, Israel and New Zealand. Readers will recognise the names of authors who are active in the European Forum for Restorative Justice. Most of the chapters demonstrate the compatibility between rights and restorative justice and the importance of a rights approach both in countries initiating restorative justice and in countries developing restorative justice beyond its origins within the criminal justice system.
Photo: Tim Chapman at the EFRJ's Symposium in Bilbao, 2019.
My interest in examining the flaws and failings in the practice of restorative justice was stimulated by the research of a PhD student, Olivia Barnes, at Ulster University who found that restorative conference practices in Northern Ireland displayed a creeping McDonaldisation which subverted their espoused restorative values and principles.
Article 2 of the UN Convention on the Rights of the Child (United Nations, 1989) is designed to protect children from discrimination whatever their ethnicity, sex, religion, language, abilities or any other status, whatever they think or say, whatever their family background. Even though restorative justice claims to be inspired by indigenous practices, it has not been effective in countering the economic and social disadvantages of indigenous young people in the New Zealand and Australian youth justice systems. Family Group Conferences, based upon indigenous concepts and practices in New Zealand, have been found to be less effective in meeting the needs of young Māori people.
Article 3 of the CRC places primary consideration on the best interests of the child. Young people’s participation in restorative justice has been criticised on the grounds that their immaturity and stage of cognitive development disadvantages them in a process which demands verbal ability, empathy and concentration. For some researchers, the best interests of the child is incompatible with the restorative making oneself accountable to the person whom one has harmed as it may aggravate the symptoms of trauma through the stress of disapproval and shame.
Article 12, which refers to respect for the views of the child, would appear to be safer ground for the restorative process. This provision means that not only should there be opportunities for children to express their views on matters that have an impact on them, but that their views must be heard and taken seriously.
Barnes (2015) observed young people in Northern Ireland feeling vulnerable and ill-equipped to express their views in a ‘room full of adults’ (Haines, 2000). Consequently, they can be intimidated, orchestrated or coerced into doing what is expected of them. On observing restorative conferences, it often seemed to Barnes that the process was scripted to lead to an apology and to agreeing to a predictable reparation plan. The control of the facilitator over virtually all the exchanges has been confirmed through research applying the discipline of linguistics to the process of the restorative conference. While carers are invited to prevent the young person being dominated, they may themselves dominate the process of dialogue by talking excessively on behalf of their children. Active shaming of young people has also been observed in restorative processes. Often young people are not fully prepared to participate in a restorative process and consequently struggle to give a good account of themselves. As a consequence, their meaning may be misinterpreted, and their sincerity may be distrusted. Partly this may be due to language and communication problems which tend to be more prevalent among disadvantaged young people who offend and partly because the dialogue process tends to privilege educated middle-class styles of communication.
Reparation is a key outcome for restorative justice. In many cases when reparation is part of an agreed plan, the young person is referred to a pre-existing reparation project rather than one designed to meet the victim’s or community’s needs arising from the harm. As a consequence, the value of reparation to victims and communities is diluted.
Many schemes report a very low level of direct victim participation in restorative processes. This can lead to practitioners constructing surrogate victims or imaginatively describing the impact of the offence without any direct evidence. Such tactics can take the process away from its restorative and reintegrative principles toward shaming and stigmatising the young person.
Restorative justice processes may reconstruct or distort people’s narratives to make them fit a simpler or thinner restorative narrative. Professionals, even when they are engaged in restorative justice, find it difficult to recognise and correct the biases that originate in their position of relative power and privilege. As the cultural and social theorist, bell hooks (1990) wrote:
“No need to hear your voice when I can talk about you better than you can speak about yourself. No need to hear your voice. Only tell me about your pain. I want to know your story. And then I will tell it back to you in a new way. Tell it back to you in such a way that it has become mine, my own. Re-writing you, I write myself anew. I am still author, authority. I am still the coloniser, the speaking subject and you are now at the center of my talk.”
Whoever has power over the narrative is able not only to control the process and its outcomes but also to conceal their power and control.
While the practices described in this section are not typical of all restorative practice, how do such abuses emerge from a process of justice which places such value on enabling participants to tell their story in their own way?
Restorative justice is still a minor and, in its modern form, a relatively new field of practice. To survive and grow it must seek and gain the support of much larger, more powerful and established systems such as the criminal justice system, social services and education. Inevitably, efforts to promote restorative justice and to gain the authority and resources to practice it lead to a degree of institutionalisation of restorative practices along with compromises over values, aims and processes. Furthermore, the bureaucratic, organisational and efficiency needs of the institution may predominate over what matters to the people who choose to participate in restorative processes.
Professional culture, whether it is derived from a criminal justice, teaching or social work perspective, can dilute and even distort the values and principles of restorative justice. This way of thinking can determine what types of crimes (generally low-risk) may be appropriate for restorative justice, what types of offenders and victims should be permitted to participate in restorative processes and what types of outcomes are acceptable. Each of these decisions is an exercise of power which dilutes the rights of people to have a voice about issues that affect them.
It seems clear that, to use Piaget’s concepts, restorative justice has often been assimilated by systems rather than being accommodated within them. Assimilation refers to how new information or knowledge is made to fit within existing discourses. Accommodation requires existing cognitive and cultural discourses to make space for a new approach to operate effectively. Accommodating restorative justice implies boundaries which protect the values of the restorative process.
Restorative justice should not be defined by a specific method, process or model of practice. It is defined by the practical application of key values and supported by evidence-based principles of practice. The value of respect for human dignity leads to the premises that the participants are experts on their lived experience and that they are capable of participating in a process designed to address a harmful incident that has had an impact on the quality of their lives. The value of solidarity leads to the conclusion that no matter how estranged or hostile the participants are, they need to collaborate to repair the harm and to move on in their lives. In restorative justice, the potential conflict between these values is resolved through a process of justice through accountability that is based upon the value of truth and the practice of facilitated dialogue.
Gearty (2006) distinguishes between rights which protect people from oppression and those which support human flourishing. This is an important distinction as rights can create boundaries within which restorative processes can be accommodated. Rights resonate with Braithwaite’s constraining standards which provide participants with protection from domination by others.
Two children’s rights can act as filters through which children can enter the restorative space. The principle of the best interests of the child should ensure that children are fully informed about the restorative process in ways that they understand, so that they can make a free and informed choice whether to participate. It follows that the process must be designed and facilitated so that it is safe, avoids degrading or humiliating treatment and addresses the needs of the child arising from the harmful incident. The principles of voluntary consent to participation and confidentiality are also important protections of the best interests of the child.
Protection from discrimination is a right that reparative justice must pay much more attention to. It means that the restorative process should not only be inclusive, flexible and adaptable to diversity including gender, sexual orientation, race, ethnicity, religion, language, class, disability and domestic circumstances, but also should be designed to counter systemic discrimination. Restorative justice should not absent itself from harms caused by imbalances of power. It should actively seek ways of rebalancing power and restoring just relations.
Other standards are required to activate the restorative process through the participants’ engagement in dialogue. Such standards are guided by Article 12 (respect for the views of the child), and Articles 39 and 40 which emphasise the dignity of the child and recovery from harm and reintegration. These rights promote the flourishing of the child, rather than protection, by animating a process of justice based upon accountability, truth and dialogue.
Braithwaite (2002) asserted that quality assurance is more important than training. Standards of practice balance the protection of the integrity and effectiveness of restorative justice with the need for support from the system. They should be framed from the participants’ perspective — what they can expect from a restorative process and what the system has a responsibility to assure. This shifts the power to the people whom restorative justice is designed to serve.
In the very near future the European Forum for Restorative Justice will publish a manual on values and standards for the practice of restorative justice designed to support countries and organisations to draft their own standards.
Children’s rights are compatible with restorative justice. This compatibility is not automatic. It needs to be based upon an awareness of how the values and strategic priorities of systems can influence practitioners to abuse or neglect children’s rights. To resist this tendency, restorative justice must be accommodated within systems rather than assimilated by them. The tensions between children’s rights and the values of restorative justice can be resolved through distinguishing rights designed to protect children and those that promote their active participation in society. In the final analysis, the responsibility to deliver high-quality restorative justice that is congruent with children’s rights lies with practitioners who are competent and accountable for their standards of practice. If these conditions can be put in place and sustained, we can state more confidently that children’s rights should include the right of access to high-quality restorative justice.
- A. Wolthuis & T. Chapman (Eds.) (forthcoming) Restorative Justice from a children’s rights perspective. Den Haag: Eleven International Publishing
Barnes, O.M. (2015). Restorative justice in the criminal justice system: the McDonaldization of diversionary youth conferencing. Ph.D. thesis, University of Ulster, Jordanstown.
Braithwaite, J. (2002c). Setting standards for restorative justice. The British Journal of Criminology 42(3):563–577. Https://doi.org/10.1093/bjc/42.3.563.
Gearty, C.A. (2006). Can human rights survive? Cambridge: Cambridge University Press.
Haines, K. (2000). Referral orders and youth offender panels: restorative approaches and the new youth justice. In: B. Goldson (ed.) The new youth justice, pp. 145–153. Lyme Regis: Russell House.
hooks, b. (1990). Yearning: race, gender, and cultural politics. Boston, MA: South End Press.
United Nations (1989). Convention on the rights of the child. New York: United Nations.
Header photo: The cost of the sea in Northern Ireland by Rory McKeever.
This article was published on 5 October 2021.