Transcript The Child Justice Bill - Democracy Development Programme

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Welcomes you to this workshop on
the CHILD JUSTICE ACT
The Child Justice Act
Presentation by Joan van Niekerk
Childline South Africa
[email protected]
Objectives for this
workshop
• To give participants an “overall” knowledge of
the contents of the Child Justice Act and
regulations
• With the use of case histories, to look at the
practical application of the Act and
regulations
• To respond to questions that participants may
have about the Act and regulations and its
application
Programme
1. Registration (8:30 – 8:45)
2. introductions
3. Expectations and objectives
4. Presentation on content of the CJA
5. Tea (10:45 to 11:00)
6. Presentation on content of the CJA
7. Lunch (13:00 to 13:45)
8 Discussion of case histories and application of the Act
9. Closure and Evaluation. 15:00
International
Commitments
• South Africa has ratified the UN
convention on the rights of the child
• This has clauses relating to the child
in trouble with the law – sections 37
and 40
Section 37 of the Convention
on the Rights of the Child
Provides for:
The prohibition of torture, cruel treatment or
punishment, capital punishment, life imprisonment
and unlawful arrest or deprivation of liberty
The principles of:
- appropriate treatment,
- separation from detained adults,
- contact with family,
- Access to legal and other assistance
Section 40 of the Convention
on the Rights of the Child
Provides for
- The recognition of the rights of children
alleged or who have committed offences
- The child’s right to due process of law
- Legal assistance in preparing and presenting
their defence
It also establishes the principle that recourse
to judicial proceedings and institutional
placements should be avoided wherever
appropriate and possible.
The Charter on the Rights
and Responsibilities of the
African Child
Provides for children in conflict with the law
- Right to special treatment
- Specially trained legal representation
- A special court for children in which they
are treated well and politely
- If imprisoned, the child should not be
tortured and treated badly
- Children should not be put in the same
court or prison with adults
Other international
commitments include
• The United Nations Rules for
Juveniles deprived of their liberty
Provisions in our Bill of Rights in
the National Constitution for the
child in trouble with the law
• Section 28 (1) (g)
• (Every child has the right)..Not to be
detained except as a matter of last
resort, in which case, in addition to the
rights a child enjoys under sections 12 and
35, the child may be detained only for the
shortest appropriate period of time and
has the right to be:
Section 28 of Bill of
Rights continued
i. Kept
separately from detained persons over the age of
18 years and
ii. Treated in a manner, and kept in conditions, that take
into account the child’s age
To have a legal practitioner assigned to the child by
the state and at state expense, in civil proceedings
affecting the child, if substantial injustice would
otherwise result
(2) A child’s best interests are of paramount importance
in every matter concerning the child
(3) In this section “child” means a person under the age
of 18 years.
The reform of domestic
Legislation in SA
•
•
-
Began in 1997/8
Included
Children in trouble with the Law
Sexual Offences Against Children
Children’s Act
Films and Publications Act
Progress
• Draft of Child Justice Bill was completed by
SALRC in 2002
• The Child Justice Bill was costed during 2002
• Drafts of Children’s Bill and Sexual Offences Bill
completed in Dec/Jan 2003
• All three Bills completed after a long period of
- consultation with wide spectrum of role players
and experts
- Consultation with children
- International comparisons
- Research
What we ended up with!
• However – the final decision makers with
law reform are the politicians
• All three pieces of legislation look quite
different to their original Bills.
• However the Child Justice Act was finally
passed with a number of improvements due
to the greater degree of participation of
experts and the openness of the
Chairperson of the PPC Justice and
Constitutional Development.
Present Status of the
Act
• Drafters were been requested by PPC on Justice
and Constitutional Development to Rewrite the
Act in language that they (!) and the general
public can understand.
• There were 7 very complicated schedules of
offences that have to be referred to throughout
the Act – these have now been simplified into 3
• Children who have committed more serious
offences were excluded from diversion and early
assessment processes. This was reviewed and
changed.
Present status of the
Child Justice Act
• At present the Act has been passed and signed
into Law
• Implementation occurred in April 2010
• National Treasury allocated funds to set up the
processes and programmes to facilitate the
implementation of the legislation including the
development of diversion programmes
• Terms of reference and norms and standards of
good practice have been drafted and implemented
for diversion programmes.
The Preamble
• Serves as an introduction to the Act
• Recognises the historical disadvantage of
many children in SA
• Focuses on the constitutional mandate to
protect children.
• Acknowledges resource and other
constraints in SA and provides for
incremental implementation.
Aims of the Act
• Establish a criminal justice system for children and child
justice courts
• The possibility of diverting children away from the CJS
• Expand and entrench the principle of restorative justice
• Recognise the present reality of crime and focus on
prevention via the rehabilitation of children
• Balance the rights of children with those of society
• Create mechanisms and processes that address the past
injustices, are more in line with the needs of children and
our international obligations
Some specific aims
• Raise the minimum age of criminal capacity
• Ensure assessment of individual needs
• Provide for special processes and
procedures
• Create an informal, inquisitorial pre-trial
procedure to enable diversion and the
meeting of the best interests mandate
• Provide a wide range of sentencing options
Chapter one
S1. Lists definitions – these are important to look at to ensure
that we all speak the same language.
Examples:
1. Suitable person – “means a person with standing in the
community who has a special relationship with the child,
identified by the probation officer to act in the best
interests of the child”
2. “symbolic restitution” means the giving of an object owned,
made or bought by a child or the provision of any service to a
specified person, persons, group of persons, or community,
charity or welfare organisation or institution as symbolic
compensation for the harm caused by that child. “
More definitions
• Acknowledges responsibility
• Diversion
• Restorative Justice.
Objects of the Act
•
•
-
Protect the rights of children
Promote the spirit of ubuntu in the CJS through
fostering the child’s sense of dignity and worth
Supporting reconciliation through restorative
justice responses
- Involving parents, families, victims and where
appropriate communities affected by the crime to
encourage re-integration of children.
Objects of the Act continued
• provide for the special treatment of children
to break the cycle of crime
• Prevent exposure of children to the negative
impact of the CJS
• Promote cooperation between government
departments and government and the NGO
sector and civil society to ensure an
integrated and holistic approach to
implementation of the Act
Guiding principles for
implementation of the Act
• All consequences arising the offence should be
proportionate to the circumstances of the child,
the nature of the offence and the interests of
society.
• A child should not be treated more severely than
an adult in similar circumstances
• Children have the right to participate in all
proceedings
• Every child should be spoken to in a manner
appropriate to his or her age and intellectual
ability. in his or her language of choice, through
an interpreter if necessary.
Guiding principles cont
• Every child should be treated in a manner which takes
into account his or her cultural values and beliefs.
• All procedures should be conducted and completed
speedily.
• Parents and appropriate adults should be able to
assist children and, wherever possible, to
participate in decisions affecting them.
• A child without family support, or educational or
employment opportunities must have equal access to
available services
• Children who commit similar offences should, as far as
possible, receive similar treatment, within an
individualised approach
Who does the Act apply
to?
• Children under the Age of 18 years
• Under certain circumstances the
provisions can be applied to youths
between 18 and 21 years
• Some provisions apply
to/include/place responsibilities on
parents and caretakers of children
The role of probation
officers
• Central to almost all activities and
processes in the Act
• Therefore the regulations (reg 2) provide
that the DG of DSD (within 3 months of
implementation) designate a probation
officer for every police station
• Provide the national commissioner of police
with the list and contact details of these
PO’s.
S6 – seriousness of
offences
• Offences have been divided into 3 levels of
seriousness in Schedules attached to the Act
• Where a child is charged with several offences,
the most serious guides the application of the Act
• Schedule 1 – least serious - theft, perjury,
contempt of court
• Schedule 2 – more serious – sexual assault, public
violence, arson, culpable homicide
• Schedule 3 – murder, rape, treason.
The Age of Criminal
Capacity – the old position
• Before implementation of the Act, a child
under 7 years was under the age of
criminal capacity
• 7-14 – rebuttable presumption of “doli
incapax”
• This was considered by the United Nations
Committee on the Rights of the Child as a
violation of the rights of young children
• Recommendation - 14 years in line with
most countries internationally
Age of criminal capacity
established in the Act Ss 7&8
• Now increased to 10 years – irrebuttable
presumption of criminal incapacity – children
under the age of 10 years cannot be held
responsible for criminal behaviour
• 10 – 14 years – rebuttable presumption – child is
presumed to lack criminal capacity and the state
must prove criminal capacity
• The PPC JCD is considering an increase in the age
of irrebuttable criminal incapacity and this will be
reconsidered 5 years after the commencement of
the act.
S5 & S9 Manner of dealing with
children alleged to have committed
offences – children under 10 years
• Children under 10 years, alleged to have
committed an offence MUST be
referred to a probation officer
• Children u 10 may not be arrested.
• Police must hand over these children to
parents or an appropriate adult or
guardian and must notify the probation
officer.
Children under 10 years
•
•
•
•
PO must assess
May refer to the children’s court
Refer the child for counselling or therapy
Refer the child to an accredited
programme specially for this age group.
• Arrange a meeting with child and parents
to discuss child’s needs
• May take no action.
Children under 10 years The purpose of the meeting
• To understand the circumstances of the
behaviour
• To formulate a written plan – specify
objects and time lines of action
• Detail services and assistance to child
• Specify who will provide the above
• State responsibilities of
child/parent/caregiver
The Meeting
• PO must record outcomes of
assessment and decisions
• If plan not complied with then child
MUST be referred to the Children’s
Court.
• If the child fails to comply the PO
MUST refer to the Children’s Court.
Children under 10 years –
the regulations
• Reg 3: Police officials have specific
processes that they must follow – the way
they must speak to children, conduct
handovers etc.
• They must ensure that they obtain contact
details of parents, give appropriate
information to the caregiver, or child and
youth care centre, complete the necessary
form (1), etc
Children under 10 years –
the regulations
• Reg 4: the police must give notice of handover of
the child to a probation officer
• Reg 5 The PO must refer a child to the children’s
court and
• Must ensure that all documentation is correct and
present
• inform the child, parents, caregiver, guardian of
the referral and their responsibility to ensure the
child attends court.
Children under 10 years –
the regulations
• Reg 6,7,8 – the PO must refer the child
for any necessary counselling and/or an
accredited programme and/or support
services with the appropriate forms and
documents and inform the child, caregivers
etc of the referral.
• The PO must request progress reports,
maintain contact with the child, assess the
outcome of the therapy, and the need for
further intervention.
Children under 10 years –
the regulations
• Reg 9 - relates to the organisation of the
meeting referred to earlier
• Reg 10 – relates to the written plan that must be
developed for children who commit crimes when
under 10y
• Reg 11 – the PO must ensure that certain
consultations and processes have been complied
with if there is a decision to take no action.
• Reg 12 – determines how that outcome of the
assessment must be recorded
Decision to prosecute
• A prosecutor who is required to make a decision whether to
prosecute a child between 10 and 14 years must take the
following factors into consideration:
• (i) the educational level, cognitive ability, domestic and
environmental circumstances, age and maturity of such
child;
• (ii) the nature and gravity of the alleged offence;
• (iii) the impact of the alleged offence upon any victim of
such offence and the implications thereof;
• (iv) a probation officer’s assessment report;
• (v) the prospects of establishing criminal capacity if the
matter were to go to trial;
• (vi) the interests of the community; and
• (vii) any other relevant factor
Proof of criminal
capacity
• Magistrate must consider PO’s report
• Can order an assessment which includes the
cognitive, moral, emotional, psychological and
social development of the child.
• Criminal Capacity must be beyond reasonable
doubt for diversion or trial
• Only psychologist/psychiatrist can assess
criminal capacity
Age assessment –S12&13
• If age is uncertain person must be treated in
accordance with the possibility of being a child
• Can be completed by a probation officer – a
process is laid down in the Act for this taking into
account a number of factors, including baptismal
and school records and a possible medical
assessment.
• Can be determined by a magistrate, who may call
upon experts to assist in this process
• S 16 Provision is made for certain processes
where errors have been made in age assessment
Age Assessment by the
court
• S14 – the presiding officer can determine
age, after considering documentation and
may request documentation to assist.
• Child can be referred to a medical
practitioner for age assessment
• This can be done through other courts –
not just the Child Justice Court
• Reg 15 relates to the process of age
assessment
Procedures to ensure attendance
at the Preliminary Inquiry
- 3 methods – written notice to appear in court,
summons or arrest.
S 18 and R 16– the written notice
- Must be handed to child in the presence of
the parent/caregiver or guardian
- The Police official must inform them of the
nature of the allegation, child’s rights,
procedures to be followed, date, time and
place, warn parent to bring the child
- Notify the Probation Officer
S19, Reg 17 – Summons
• A summons to attend a preliminary inquiry can be
issued
• Served on child with parent or another appropriate
adult present
• In the prescribed manner – inform of nature of
allegation, child’s rights, procedures to be followed,
warn child to attend the preliminary inquiry, warn the
parent/adult to bring or cause child to be brought to
the court and remain in attendance
• Notify the PO of the summons.
Arrest – S20
• Without compelling reasons a child may
not be arrested for a schedule 1
offence. These may include
- Child has no fixed address, is a danger
to himself or another.
- Police must inform the child of nature
of allegation, child’s rights, procedures
to be followed
Release of a child into care of
parent, appropriate adult or own
recognisance – S24
•
•
•
•
•
Can be done at the preliminary inquiry
Must be considered if child in custody
Must be in the best interests of justice
Must give consideration to a PO’s report
Must consider child’s best interests,
previous convictions, age of child,
interests and safety of community,
seriousness of the offence.
The magistrate may impose
conditions to the release
For example – the child
• (a) must appear at a specified place and time;
• (b) must report periodically to a specified person or place;
• (c) must attend a particular school;
• (d) must reside at a particular address;
• (e) must be placed under the supervision of a specified
person;
• (f) may not to interfere with any witness, tamper with any
evidence or associate with any person or group of specified
people; or
• (g) comply with any other condition that the presiding
officer deems fit in the circumstances
Parents/guardians/appropriate adults may be warned to ensure
child’s compliance.
If the child fails to
comply
• The reason must be investigated
• Child may not be penalised if lack of
compliance not the child’s fault
• May add conditions
• Parents/guardians/appropriate adults
who fail to comply are guilty of an
offence.
Release of a child on bail
• Interests of justice must be
considered
• The ability of the child/parent to pay
bail must be considered
• Bail conditions may exclude payments
and be subject to other conditions.
Considering the placement
of child in Custody
• Least restrictive option must be
considered
• Preference is given to a child and
youth care centre
• Police cells or lock ups can be used –
but only as last resort
S28 – protection of children
detained in police custody
• Separate from adults and the opposite sex
• Vulnerability and risk of harm must be
considered
• Visits by parents, appropriate adults,
guardians, legal reps, social workers, PO’s and
assistant PO’s, health workers and religious
counsellors are permitted
• Care must be consistent with the specific
needs of children.
Custodial Placement of
children prior to conviction
• Complaints must be recorded and reported
to the station commissioner
• Provision is made for immediate medical
care
• If injury has occurred this must be
reported to the national Commissioner of
police
• Registers of complaints must be kept.
S29 – Placement in a
child & youth care centre
•
-
Need to consider
The age and maturity of the child
Seriousness of the offence
Risk of danger to self or others
Appropriateness of the level of security at
the centre
- Availability of appropriate accommodation.
S 30 Before detaining a child
in prison the magistrate must
consider
•
•
•
•
•
•
•
•
•
•
(a) the best interests of the child;
(b) the child’s state of health;
(c) previous convictions or charges pending against the child;
(d) the risk that the child may be a danger to himself, herself or
to any other person or child in a placement facility;
(e) any danger that the child may pose to the safety of members
of the public;
(f) the risk of the child absconding from a placement facility;
(g) the probable period of detention until the conclusion of the
matter;
(h) any impediment to the preparation of the child’s defence or
any delay in obtaining legal representation which may be brought
about by the detention of the child;
(i) the seriousness of the offence in question; or
(j) any other relevant factor.
Placement in prison
subject to conditions
• Bail conditions not complied with
• Child must be over 14 years
• Best interests of justice, or child, or
public
• Offence is a schedule 3 offence.
Injury or trauma to a
child in detention
• Regulation 21 provides for a
procedure and records of complaints
about injury or trauma to a child in
detention.
• Regulation 25 deals with complaints
about the transport of children to
court.
Errors in placement – S31
• When the admitting person is aware
of an error in placement they must
refer the child back to court on the
next court day.
S32 – court must consider certain
factors if further detention considered
at the Preliminary Inquiry.
• Is detention still necessary and
appropriate
• Enter the reasons in the court record
• Consider a reduction in the amount of bail
• Enquire if the child is being treated
appropriately
• If not, order an investigation
• Make a remedial order.
S33 – conditions of detention
at PI or child justice court
• Child may not wear leg irons
• No handcuffs without exceptional
circumstances
• Kept separate from adults in conditions
appropriate to age
• Genders must be separate
• Children must be transported separately
from adults.
S34 – PO has duty to
assess children
• Every child must be assessed unless
this duty is dispensed with (S41)
• Child must be assessed before the
Preliminary Inquiry
• If child under 10 years – must be
assessed within 7 days of
notification.
Provision is made for
assessment
•
•
•
Purpose of assessment
assess whether a child may be in need of care
estimate the age of the child if the age is uncertain
establish the prospects for diversion
formulate recommendations regarding the release or
detention and placement of the child;
• gather information relating to previous convictions, pending
charges and any previous diversion in respect of the child
• in the case of children below the age of 10 years, establish
what measures need to be taken
• Determine whether the child has been used by an adult to
commit a crime.
Assessment
• S 36 Is confidential – may only be used for the
purposes defined in this act and inadmissible as
evidence during bail applications, plea, trial, or
sentencing
• Done by probation officer
• S38 Certain persons have to be present or may be
requested to be present – the child,
parent/caretaker, investigating police officer
• S 37 Child must be seen in private and encouraged
to participate
S39 – powers and duties of the
probation officer at
assessment
• must explain the purpose of the
assessment to the child
• Explain the child’s rights
• Explain the procedures to be followed
• Ask if the child intends acknowledging
responsibility for the offence in question.
• Must encourage the participation of the
child
The probation officer
submits a report in which
• Certain basic information is presented
• The probation officer may make recommendations
as to
- the care of the child,
- Referral to the Children’s Court parents care
- Release into the
- detention,
- Diversion
- Further assessment
- Referral for other services
- Age estimation
Regulation 27
• Sets out the powers and duties of the PO
• Child participation is emphasised as well as appropriate
venue
• The contents of the report are set out – eg – enough
information to support the conclusions and
recommendations, how these were reached, sources of
information, motivate the recommendations, give child’s full
history, give an opinion about the reasons why the child
committed the offence and behaviour, influence by adults,
the child’s ability to re-integrate into society, and whether
the child acknowledges the office.
The assessment report
of the PO
• If placement in a child and youth care centre is
recommended there must be a form noting that
accommodation is available and giving the level of security,
amenities and features of the centre
• If further assessment is recommended this may be linked
to
• - possibility child a danger to self and others
• A history of repeat offending or absconding
• A social welfare history that justifies this
• Possibility of admission to a sexual offenders, substance
abuse or other treatment programme.
Diversion
• means diversion of a child away from the formal
court procedures to the informal procedures
established by the Act
• May occur before or during the preliminary
inquiry, and at other stages of the criminal justice
process
• Diversion may occur before the preliminary
inquiry in the case of minor offences, where the
child acknowledges the offence. However the
child and, if possible his/her parent, must appear
before the magistrate in court or in chambers to
have the diversion option made an order of court
Diversion by prosecutor
•
•
•
•
•
•
Before the preliminary inquiry
Schedule 1 offence
Child has criminal capacity
May dispense with the assessment
Must consider if previous diversions
If not diverted then organise child to appear at a
preliminary inquiry.
• If thinks the child may be in need of care – must
order the Preliminary Inquiry for consideration
for referral to the Children’s Court.
The Preliminary Inquiry
• Is an informal pre-trial procedure to be attended by the
prosecutor, magistrate, child, and ideally by the parent(s),
probation officer and legal representative if appointed, a
diversion service provider if diversion to be recommended,
any other person considered appropriate.
• People can be excluded if in child’s best interests
• Can proceed without parents if in child’s best interests
• May be held in a court or other suitable place
• Identity of child to remain confidential
• Parents and the child may be summonsed to appear and
arrested if they fail to do so.
• Informal
• Inquiry magistrate must keep a record of proceedings
The Preliminary Inquiry
Procedure
The Inquiry magistrate must
• Conduct the inquiry in an informal manner
• Inform the child as to nature of inquiry, alleged
offence, child’s rights, the procedure to be followed
• Ask if the child acknowledges the offence – if yes –
the PI can proceed, if not no further questions may be
asked.
• Consider the probation officer’s assessment
• Request further information to establish the truth
• Encourage the child’s participation
Objectives of the
preliminary inquiry
• Consider the PO’s report with reference to age
estimation if age uncertain, the view of criminal
capacity, the need for a more detailed assessment
• Establish if diversion appropriate before the plea
• Identify a suitable diversion option if appropriate
• Ensure all information needed is available
• Ensure all views are considered
• Encourage participation of child
• Determine release or placement
The Preliminary Inquiry
must be held
• For every child alleged to have
committed an offence unless
- Already diverted by prosecutor
- Child under 10 years
- Case has been with drawn
Within 48 hours or specified times
The ff information must be
placed before the magistrate
• The PO’s assessment report
• Any form/report re age assessment
• Any info re previous convictions or
diversions
• Any report regarding the detention
of the child in police custody
• Any other relevant information
The Preliminary Inquiry
• The magistrate may
- Request further information
- Elicit further information from anyone
attending
- Takes steps to establish the truth
- Dispense with the assessment if in best
interests of the child
- Allow the child, parents or others to ask
relevant questions
The Preliminary Inquiry
• Where there are co-accused children, a joint
inquiry may be held
• Individual decisions may be made iro each child.
• Where diversion is not indicated, the child must
be informed and the prosecutor must ensure that
the investigation continues.
• Where prejudicial information has emerged in the
PI, the same magistrate may not preside over
subsequent proceedings.
The Preliminary Inquiry
• S 48 The PI may be postponed:
– but the period of postponement may not exceed 48 hours
where child in detention, diversion considered, and assessment
not done but needed.
- If this is necessary to secure the attendance of an
essential person, information, establish views of victim,
arrange a diversion option, find alternative placement, or
for assessment, or to allow for other proceedings.
- The period may be extended for 14 days for a more
detailed assessment, or awaiting a decision by the Director
of Public prosecutions.
- Or even longer for medical/psychological care
Regulations of note
• Where a child cannot be supported by a parent or
guardian, independent observers can be requested to
attend a PI or trial. Reg 38 relates to drawing up a list
of independent observers. The process of listing,
selecting and appointing these persons is contained in
Regs 39 and 40.
• Regulations 41 to 44 relate to the progress reports
that must be written to ensure compliance and benefit
from diversion and sentencing options.
• Regulations 54, 55 provide for the register of children
lacking criminal capacity.
Diversion
• If the inquiry magistrate is satisfied that –
• (a) the child acknowledges responsibility for the offence;
• (b) the child has not been unduly influenced to
acknowledge responsibility;
• (c) there is a prima facie case against the child;
• (d) the child and his or her parent, or an appropriate adult,
consent to diversion; and
• The prosecutor indicates the child can be diverted
Then a diversion order may be given.
The Magistrate may also refer to the Children’s Court at this
stage if the child appears in need of care.
The prosecutor may also indicate that a matter may be
diverted.
Diversion in Schedule 3
offences
• May be ordered by the Director of Public
Prosecutions (who may not delegate this
power) if
- exceptional circumstances exist
- There has been consultation with the
victim or a person with a direct interest
- Consultation with the investigating police
official
The Objectives of
Diversion are to
• (a) deal with a child outside the formal criminal
justice system in appropriate cases;
• (b) encourage the child to be accountable for the
harm caused;
• (c) meet the particular needs of the individual
child;
• (d) promote the reintegration of the child into
the family and community;
• (e) provide an opportunity to those affected by
the harm to express their views on its impact on
them;
The Objectives of
Diversion are to (Cont)
• (f) encourage the rendering to the victim of some
•
•
•
•
symbolic benefit or the delivery of some object as
compensation for the harm;
(g) promote reconciliation between the child and the
person or community affected by the harm caused by
the child;
(h) prevent stigmatising the child and prevent
adverse consequences flowing from being subject to
the criminal justice system;
(i) reduce the potential for recidivism; and
(j) prevent the child from having a criminal record.
Diversion programmes
• Are to be registered
• Accreditation criteria and minimum
standards are established
• NGO’s are recognised diversion
programme providers
• A confidential register of diverted
children is to be kept
Minimum Standards of
Diversion programmes
•
•
•
•
•
•
•
•
(1)
Diversion programmes
(a) must be structured in such a way so as to strike a balance
between the circumstances of the child, the nature of the offence
and the interests of society;
(b) must be aimed at minimising the potential for recidivism;
(c) must promote the dignity and well-being of a child, and the
development of his or her sense of self-worth and ability to
contribute to society;
(d) may not be exploitative, harmful or hazardous to a child’s
physical or mental health;
(e) must be appropriate to the age and maturity of a child;
(f) may not interfere with a child’s schooling; and
(g) may not be structured in a manner that excludes certain
children due to a lack of resources, financial or otherwise.
Minimum standards for
diversion
• Diversion programmes must—
• (a) impart useful skills;
• (b) include a restorative justice element which aims at
healing relationships, including the relationship with the
victim;
• (c) include an element which seeks to ensure that the child
understands the impact of his or her behaviour on others,
including the victims of the offence, and may include
compensation or restitution;
• (d) be reasonably accessible to the child;
• (e) be structured in such a way that they are suitable to
be used in a variety of circumstances and for a variety of
offences and their effectiveness measured
Minimum standards for
diversion
• (f) be promoted and developed with
the view to equal application and
access throughout the country,
bearing in mind the special needs and
circumstances of children in rural
areas and vulnerable groups.
• Involve parents, appropriate adults
and guardians where appropriate.
S 53 Diversion options
(other than programmes)
• (a) “a compulsory school attendance order” means an
order issued in the prescribed manner requiring a child
to attend school every day for a specified period of
time, which attendance is to be monitored by a
specified person;
• (b) “a family time order” means an order issued in the
prescribed manner requiring a child to spend a
specified number of hours with his or her family;
• (c) “a good behaviour order” means an order issued in
the prescribed manner requiring a child to abide by an
agreement made between the child and his or her
family to comply with certain standards of behaviour;
Diversion options (other
than programmes)
• (d) “a positive peer association order” means an order
issued in the prescribed manner requiring a child to
associate with persons who can contribute to the
child’s positive behaviour;
• (e) “a reporting order” means an order issued in the
prescribed manner requiring a child to report to a
specified person at a time or at times specified in
such order so as to enable such person to monitor the
child’s behaviour; and
• (f) “a supervision and guidance order” means an order
issued in the prescribed manner placing a child under
the supervision and guidance of a mentor or peer in
order to monitor and guide the child’s behaviour.
Other diversion options
- Are listed in the Act
- Are categorised according to the
seriousness of the offence
- Under certain circumstances
diversion may be considered for
Schedule 3 offences.
Diversion Options for
Schedule 1 crimes
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Oral or written apology
Formal caution
Placement under supervision/guidance order
Placement under reporting order
Compulsory school attendance order
Family time order
Peer association order
Good behaviour order
Prohibition from visiting a specific place
Referral to counselling or therapy
Diversion Options for
Schedule 1 crimes
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Compulsory attendance at a specific place
Symbolic restitution
Restitution of a specified object
Community service
Provision of a service or benefit
Payment of compensation to a
person/community/charity
Diversion options for
Schedule 2 and 3 crimes
• Any of the level one
• Compulsory attendance at a place or
programme including residential
attendance
• Referral to intensive therapy
• Placement under the supervision of a
probation officer.
Diversion orders
• Level one – if child under 14 years –
may not last for more than 12months
• If over 14 – not more than 24 months
Unless reasons are given
Level 2 – if child under 14 years – not
more than 24 months and if older, not
more than 48 months.
Selection of Diversion
Orders
• Consideration must be given to
- the appropriate level
- The child’s cultural, religious and linguistic
background
- Educational level, cognitive ability, domestic and
environmental circumstances
- Child’s age and developmental needs.
A combination may be acceptable or even individually
developed
Provision of diversion
programmes
• Minister of DSD must create a policy
framework to develop capacity within all levels
of government and NGO’s to establish,
maintain and develop diversion programmes.
• Establish and maintain a system for
accreditation
• Ensure availability of resources to implement
diversion programmes.
Provision of diversion
programmes
• The system must contain:
- Criteria for evaluation to ensure
compliance with minimum standards
- Criteria to evaluate content
- Mechanisms to monitor diversion
programmes
- Mechanisms to remove those that do not
comply.
Policy framework for
diversion programmes
• Must be tabled in Parliament
• Publish an invitation to apply
• Consider applications within a time period of 4
months of closing date for applications.
• Certificates of accreditation must be supplied
• Valid for 4 years
• Quality assurance must be conducted
• Accredited programmes must be published in the
Gov Gazette.
Reg 32 deals with quality
assurance of diversion programmes
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A panel must be appointed
The process of QA is set out
Is inclusive of field visits to the site
Compile reports.
Diversion
- Compliance must be monitored
- Non-compliance reported to the Magistrate
- Consequences follow – child must appear before
magistrate in Child Justice Court
- Failure may result in withdrawal of diversion
option and matter proceeding to trial
- Reports must be written and sent to prosecutors
Legal consequences of
diversion
• If successfully completed – prosecution
may not be instituted.
• S60 – A confidential register of diversions
must be kept by DSD – with information on
the child, the offence, the diversion
options, and compliance.
• Access limited to probation officers,
police and presiding officers, research.
Family Group
Conferences
• An informal procedure to bring victim and child
together – if both agree.
• Child can be ordered to attend
• Facilitators are provided for
• Participants may include
child/parent/victim/probation
officer/prosecutor/investigating officer
• Procedures are determined by the child and
family and other participants
• May develop and agree on a plan of action to be
followed by the child (and family)
The plan of action
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•
May include some of the remedial actions referred to previously
Must specify objectives
Details of services to child and who provides them
Responsibilities of child and parents
Time period of implementation
May include aspects of education/employment
May include a monitoring mechanism.
Process must be recorded but no evidence later used against the
child
Failure to comply with plan – a report must be sent to the
magistrate.
Victim offender
mediation – S62
• An informal process – child and victim
must both agree
• To be convened by a probation
officer, inquiry magistrate or Child
Justice Court
• May be mediated by a probation
officer or Diversion service provider
Trial
• Must be in a child justice court (specialised court)
• If an adult is a co-accused – child’s case must be
heard in the Child Justice Court.
• Before the child offers a plea the Magistrate
must inform child of allegations, rights and
procedure
• Best interests of the child must be upheld
• Procedure must be fair and appropriate to the
child’s age and understanding
• Must be in camera.
Trial in Child Justice
Court
• S64 – if child appears in need of care must be
referred to the Children’s Court
• S 65 Parent or appropriate adult may assist the child
and can be warned to attend
• S66 Postponements should be minimised
• The court may investigate delays
• S 67 Diversion may occur at this stage of the CJ
Process
• (Criminal capacity must be established before
conviction if child between 10 and 14 years
• A Professional evaluation may be sought)
Ss68/69 Sentencing
• Objectives of sentencing must be considered –
Child must understand objective, encourage
accountability, appropriate, proportionate,
promote reintegration of the child
• Ensure any necessary treatment and services
• Follow restorative justice principles
• Prison the last resort
• The impact of the sentence on the victim must be
considered
• Pre-sentence reports from probation officers
must be requested.
Sentencing
• Residential sentences in child and youth care
centres or prison must be carefully
considered – factors to take into account ae
- Seriousness of the offence
- Appropriate
- Linked to specific services needed by the
child.
- Protection of the community
Sentencing
• S 70 – victim impact statements can be taken
and are admissible
• S71 – pre-sentence reports must be done
promptly – 6 weeks at the most
• Information in the report must support the
recommendation
• The recommendation need not be accepted by
the magistrate – but s/he must state why.
Sentencing
• The compliance with the sentence must be monitored
• Fines are discouraged – have little meaning for the child,
often it is a parental punishment!
• Correctional services and community service may be
considered.
• Compulsory residence in a corrective facility may be
ordered.
• Sentences may be suspended or postponed with conditions.
• Sentences may include
• = community based sentences – S 72
• Restorative Justice Sentences – S73
• Fines or some form of actual/symbolic restitution – S 74
• Correctional supervision S 75
Sentencing may include
• S76 compulsory residence in a child and youth Care
Centre providing appropriate programmes.
- For Schedule 3 offence
- Admission to the centre must be monitored
- Officials have to account for process of admission if
delayed.
- Not more than 5 years or child is 21y
- On completion head of centre must submit a report
- Magistrate can then change/confirm sentence
S 77 Imprisonment
• No child under 14 years may be
sentenced to prison.
• Last resort – and for shortest
possible period of time
• No life sentences for children
• Can back date sentence to when child
first taken into custody
Sentencing
• S78 – sentences may be postponed
subject to conditions – which must
then be monitored.
• S79 – If the child fails to comply
with any conditions of sentence then
a report must be sent to Child
Justice Court and child re-sentenced
S 80 Legal
representation
• Is provided for at any stage of the proceedings, at state
expense in certain instances – this right cannot be waived
• Must encourage the child’s understanding of and
participation in proceedings
• Explain child’s rights and duties
• Promote diversion where appropriate – but not unduly
influence the child’s acknowledgement of responsibility
• Ensure no delays
• Uphold child’s rights
• Uphold highest standard of ethical and professional
conduct.
Further provisions
• S 84 provides for appeal processes
• S85 automatic review of all custodial sentences
• S86 provides for bail during review or appeal if
appropriate
• S87 – allows for expungement of criminal
convictions for Schedule 1 and 2 offences, after
5 or 10 years on written application and no
further similar offences.
• This process is described.
• Diversion records can also be expunged.
S 89 – The establishment of
one-stop child justice centres
Objective is to promote the integration of holistic
services
- May include offices for SAPS and PO’s, legal
representatives, service providers, tracers,
correctional supervision and temporary
accommodation for children
- - must have a management committee with
representatives from the different sectors.
Other Matters
• S90 Notice of age assessment to be
sent to Home Affairs for children
without documents.
• S92 children used by adults to
commit crime – the adult must be
reported to SAPS.
The National Policy
Framework – S 93
• Must be adopted after consultation to
- Ensure uniform, coordinated and cooperative
approach
- Guide implementation of the Act
- Promote cooperation and communication with
NGO’s to strengthen the child justice system
- To enhance service delivery
- Must be reviewed, amended regularly
Establishment of Intersector Committee – S94
• Reps from Justice, National
Prosecuting Authority,
Commissioners of SAPS and
Correctional Services
• DG’s Social Development, Education,
Health.
• May invite the NGO sector to attend
The Inter-sector
Committee Ss 95,96,
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Must meet twice a year
Responsibilities include - implementation,
measuring progress,
ensuring compliance of Gov Depts, monitoring
implementation,
- establishment of an integrated information system to
provide qualitative and quantitative data on all processes in
the Act
- Report to parliament.
S97 – regulations, directives,
national instructions and the
register
• Regulations must be developed and gazetted
(done)
• National instructions and directives must be
developed by SAPS, Justice, National Prosecuting
Authority
• Training courses on the Act must be developed by
SAPS, DSD, Health and Correctional services.
• DSD must develop a register for all children
involved in Child Justice processes – access is
limited.
• Thank you !
• Joan van Niekerk
• Email: [email protected]
• [email protected]