Expert assessment of children’s criminal capacity: an analysis of doli incapax psychological court reports in Australia

Recognising children as developing individuals, legal systems generally protect children from full criminal liability. Further to the minimum age of criminal responsibility, several jurisdictions include additional legal safeguards under the doctrine of doli incapax. This doctrine presumes that children within conditional age ranges (e.g. 10–13 years) are incapable of criminal intent, unless proven otherwise. Courts may seek expert assessment of a child to help determine the applicability of doli incapax, yet no research examines how clinicians undertake these assessments. Drawing on 80 doli incapax assessment reports in Australia, this study sought to identify children’s characteristics, their alleged offending, domains assessed, and other factors considered by clinicians in forming opinions of children’s criminal capacity. Across the reports, 70.0% of children were boys, 32.5% were Aboriginal and Torres Strait Islanders, and 75.7% had Child Protection involvement. Furthermore, 60.0% of children had a psychiatric disorder and 11.3% had an intellectual disability or acquired brain injury. Tests of sociomoral reasoning and cognitive development typically informed assessments, and in 48.8% of cases clinicians gave evidence to support doli incapax being upheld. Areas for strengthening consistency included how clinicians should consider the impact of developmental trauma and previous justice system contact on children’s criminal culpability.