'Seen and Not Heard’: In Defence of Children, Neuroscience, and Effective Participation at Trial

In England and Wales, the current test for unfitness to plead is meant to accurately identify vulnerable defendants who lack sufficient capabilities to effectively engage in a fair trial. However, this test fails to properly identify children and young persons with significant functional incapacities because it consists mainly of cognitive criteria. In particular, the developmentally immature child will typically be deemed fit to stand trial, irrespective of whether they can cognise (e.g., instruct their legal team). Considering that even the flawed test is unavailable in the youth courts, effective participation at trial is a significant problem for children who might make imperfect/unsound decisions at various points in the trial. The Law Commission’s proposed reform and recommended expansion of the current test goes some way towards addressing this issue by assessing the defendant’s decision-making, that is, functional ability, alongside many other factors, but it has not been introduced into law.

Against this backdrop, the latest neuroscience on adolescent brain development reveals that developmentally immature children and young people might lack the ability to make decisions and effectively communicate with others. This chapter calls for reform of the unfitness to plead test considering this evidence. It adds to the Law Commission’s insights about the inadequacies of the test in identifying unfit developmentally immature children and young persons. Ultimately, this chapter will examine the specific legal and scientific challenges for immature children and young people’s participation during the trial process and will respond to the Law Commission’s proposed reform to enable their participation in a fair trial.