NPO 035-472
National coordinator: Joan van
Niekerk
Postal Address:
25th January 2008
For Attention: Mr Y I Carrim and Committee Members
The Chairperson
Portfolio Committee on Justice and
Constitutional Development
Dear Mr Carrim and Committee Members
PUBLIC HEARINGS AND SUBMISSIONS ON
THE CHILD JUSTICE BILL
Thank you for the opportunity to
make submissions on the Child Justice Bill.
Childline is delighted that the Bill
has been returned to Parliament for finalization. Our submission is attached to this letter.
CHILDLINE
SA REQUESTS THE
Yours Sincerely
Joan van Niekerk
National Coordinator, Childline SA
SUBMISSION
BY CHILDLINE SA ON THE CHILD JUSTICE BILL
Introduction: Childline South
Childline South
-
a
toll free counselling service for children and adults with concerns about
children. This service receives about 1 million calls per year many of which relate to child justice issues
-
Therapy
services to
children who have suffered abuse and trauma
-
Prevention
and Education programmes in Child Protection
-
Therapy
and diversion programmes for adults and children who have committed offences
against children
-
Court
preparation programmes for child witnesses
-
Safe
house care for children in need of this service
-
Training
and education in child protection issues to partners and service providers.
Introductory Comments on the Child
Justice Bill
1. Childline welcomes the strong crime
prevention element in this Bill.
2. Childline supports the focus on
diverting children away from the Criminal Justice System and the Bill’s focus
on restorative justice processes, diversion and remedial programmes which we believe will contribute significantly to
crime prevention strategies.
Childline has noted with concern the
comments in the Report of the African Peer Review Mechanism (APRM) which notes
that “it appears that little or nothing is being done to replace disintegrating
social support institutions in
Childline believes that the child
justice legislation with its diversion
and other remedial provisions for children in conflict with the law when
implemented will address some of the concerns about crime and the situation of children as
expressed in Peer Review Report.
The focus on Diversion and other provisions are also congruent with
the many recommendations made by the United Nations Committee on the Rights of
the Child on Children in Conflict with the Law[2] and the Riyald United Nations
Guidelines for the Prevention of Juvenile Delinquency.[3]
3. Childline welcomes the strategies
provided for in the Bill that are designed to ensure that the placement of
children in police cells and prison will be used under limited and specific
circumstances
and as a last resort.
Our experience has been (and this is supported by the report of the Jali
Commission) that children are often harmed than helped by these forms of placement.
4. However the language and structure
of the Bill is complex and
may hamper understanding and implementation of the provisions. Childline requests that the
Committee consider simplying the language of the Bill.
Specific
issues that arise from the Bill:
1.
Assessment:
i.
Assessment
may take many forms and therefore require a range of professional skills. A child may require
assessment relating to
-
suitability
for diversion
-
criminal
capacity –
which usually requires skills beyond that of a probation officer’s basic
qualification
-
placement
in a specific facility
-
placement
in a specific programme
-
whether
a child is a child in need of care
and interventions that extend beyond those within the criminal justice system
Probation officers have specific
skills relating to probation work, and in many instances may not have the
skills required to conduct an assessment process to meet certain needs of the criminal justice system, for example criminal capacity, and/or the child and family. The
services, knowledge and skills of other professionals must therefore be
provided for in the legislation.
ii.
Assessment
in some instances may require a process of interaction with a child and
significant others over a period of time. Probation officers may not have this
type of access to the child, and/or
significant others for example where the child is placed in a child and
youth care centre some distance away from his/her work centre. In therefore makes sense to provide
for this assessment through another suitably qualified professional.
iii.
Probation
Officers may not be immediately available to the Court to conduct an assessment
process. It is therefore essential to ensure that children are not denied
access to
certain provisions in the legislation simply because there is no
probation officer available to conduct as assessment. It is well known that
there is a shortage of social work and related skills in
It is therefore essential that
assessment as defined in the Bill is expanded to take the above into account.
Childline therefore recommends that
Section 1, the definition “assessment”
be expanded to read “assessment means assessment of a child and his/her family and context by a probation officer or
suitably qualified person”. The words “as contemplated in Chapter 5” should be
omitted to ensure that this definition applies wherever assessment is mentioned
in the Bill.
It is also recommended that
i.
all
children, regardless of
the crime committed and their
age be assessed by a probation officer or suitably qualified professional.
ii.
The
assessment process take place in a place that enables privacy and
confidentiality without compromising the safety of the person conducting the
assessment
iii.
That
the child may make reasonable requests as to the presence of significant
persons, other than parents and caretakers, during the assessment process.
2.
The Age of Criminal Capacity
The Bill raises the age of an irrebuttable presumption of Criminal Incapacity to 10 years, (clause 6). A child who is 10 years or older
but under the age of 14 years and who commits an offence is presumed to lack
criminal capacity unless he or she is proved to have such criminal capacity in
accordance with Section 10.
Although it is recognized that
children under the age of 12 years can commit serious crimes, Childline South
This
is in line with:
i.
Research on the development of
children and their ability to make appropriate choices about their behaviour
and understand the consequences of these choices
ii.
The
lower age recommended by the United Nations Committee on the Rights of the
Child which states “from these
recommendations, it can be concluded that a minimum age of criminal responsibility
below the age of 12 years is considered by the Committee not to be
internationally acceptable. States Parties are recommended to increase their
lower MACR (Minimum Age of Criminal Capacity)
to the age of 12 years as the absolute
minimum age and to continue to increase it to a higher age level.” [5]
The
referral of children under the age of 10 (or 12 if the recommendation
to increase the upper limit of incapacity
is accepted) to programmes and services as
envisaged in clauses
7 and 8 of the Bill is Strongly supported
by Childline South
The
full text of the UN Committee’s recommendations relating to the age and
criminal capacity issue is attached as an appendix to this submission for the information
of the Parliamentary Portfolio Committee on Justice and Constitutional
Development. (Appendix A).
3.
The
Exclusion of Certain Children from Diversion Prior to Trial
Childline
believes that the exclusion of certain
children
from diversion is both discriminatory and inappropriate, for example the
exclusion of children over the age of 14 years who have committed certain
crimes such as sexual crimes as provided
for in certain of the schedules
contained in the Bill.
With
reference to sexual crimes, Childline notes that the age of consent to sexual
activity has been fixed at 16 years in the Criminal Law (Sexual Offences and
Related Matters) Amendment Act no 32 of 2007 as
recommended to Parliament by the Parliamentary
Portfolio Committee on Justice and Constitutional Development. From this one
can assume that the Committee considered the need to protect children under the
age of 16 from their developmental inability to make appropriate decisions
about their sexual behaviour. In seems incongruous then that children under
the age of 16 years who have committed a
sexual crime should be held more accountable for his/her behaviour.
Childline
does not suggest that there should be no demand for accountability and the
assumption of responsibility, and even negative consequences for these crimes,
but rather that the provisions for dealing
with the child through diversion, restorative justice options and rehabilitation
prior to trial can potentially be applied to all children regardless of the
crime and age of the child.
Childline
has 20 years experience providing rehabilitation programmes to child sexual
offenders. Child and adult offenders are referred to these programmes through
the criminal
justice
system,
other NGO’s working in the field of child abuse, state departments, and
sometimes by families and offenders themselves.
Childline’s
experience with young sexual offenders indicates that the vast majority of these
children have been exposed to
adverse circumstances through their childhood and have been exposed to various
forms of abuse and violence.[6]
This research further indicates that these children have little understanding
of their sexual behaviour and the impact of this on others
and have distorted beliefs about sex and sexuality.
A
further problem is the low rate of convictions and high level of withdrawals in
sexual offences cases, which could result in
children who are not
being considered for diversion
prior to trial and who then
have
charges withdrawn or who are acquitted, are not given
the opportunity to acknowledge their offence and receive no assessment
and remedial
action.
Childline
respectfully submits that all children should be assessed and that the
potential for diversion be available for any child in conflict with the law if
this is considered the appropriate course of action for the child.
It is also noted that this is sometimes a more victim friendly option. Research
indicates that the criminal justice process is often experiences as traumatic
for child witnesses.
It
is therefore recommended that clause
11 (e) is deleted from the Bill as well as clause
16 (2) (a) (ii), and (3) (c
), clause 57.
4.
The Protection of Children in Police
Custody
Childline submits that the
provisions in clause
28 are inadequate. Childline has
received calls on the psycho-social neglect of children in police cells,
failure to take a child for medical assessment and treatment. It is critically
important that the care and protection of children in police cells is holistic.
Childline suggests that the word
healthcare in S28 (1) (d) be replaced by “health and psycho-social care in the event of any illness, neglect or psycho-social distress” and that section 2 (a) and (b)
read as follows:
(a) If any complaint is received from a
child or any other
person during an arrest
or while in detention in police custody relating to any injury, psycho-social distress and/or neglect sustained by such child or if a
police official observes that a child has been injured, is experiencing psycho-social
distress or neglected, that complaint or observation must,
in the prescribed manner be recorded and reported to the station commissioner,
who must ensure that the child receives immediate and appropriate (medical -
omit) treatment if the station commission is satisfied that any of the
following circumstances exist:
(ii)
there is
evidence of physical, psycho-social
distress
and/or neglect;
(iii)
where the
child appears to be in pain
or distressed as a
result of an injury
or neglect;
(iv)
where there
is an allegation of sexual abuse of any nature; or
(v)
any other
circumstances which warrant medical
or psycho-social treatment
and/or intervention.
(b) in the event of a report being
made as contemplated in paragraph (a), that report must, in the prescribed
manner, as soon as is reasonably possible, be submitted to the National
Commissioner of Police indicating –
(i)
the nature
of the injury, psycho-social distress and/or neglect suffered by the child
(ii)
an
explanation of the circumstances surrounding the injury and/or neglect; and
(iii)
a
recommendation as to whether any further action is required.
(c) A copy of the (medical) report,
if applicable…….
A further sub section is recommended
to this section
(5) Where children are detained in
police cells, there must be daily contact with the child by a probation officer
or suitably qualified professional person.
5.
Diversion
Childline welcomes the provisions
for diversion and would like to make the following comments relating to
diversion:
-
diversion
should be an option that may be considered for
any child, regardless of age or offence.
-
At present
diversion programmes are not universally available to all children who require
such programmes. Therefore provision must be made for provisional registration
of such programmes,
possibly through the regulations on the Act.
-
That persons
running and managing specialized programmes such as those for child sexual
offenders be included in the assessment of children who have the potential to
be admitted to these programmes to avoid the inappropriate placement of
children, and
provide for
additional assessment by the diversion service provider. The Preliminary Inquiry therefore
needs to be open to all children.
-
That persons
managing such programmes should not be required to attend the court proceedings
unless their presence is specifically required by the Court.
-
That the
duration of a child’s attendance at a diversion programme be determined by the
child’s need for assistance and rehabilitation, for example Section 58 (4) (a)
stipulates that a child below the age of 14 years may not be ordered to attend
a programme more than 12 months in duration. This may be too brief for a child
with a persistent behavioural difficulty who may require extended assistance
and monitoring.
Further
comments
1.
It is not
appropriate to mention black children as occurs in the Preamble to the Bill. It
mistakenly gives the impression that children of a certain colour are more
prone to conflict with the law than other children. Childline recommends that
this reference to a child’s colour is omitted.
2.
Clause7
(1)
-
48 hours is too long a period for a child under the age of 10 years to await a
placement in a child and youth care centre or to be returned home. Childline
suggests that the sentence should read “must immediately take such child to the
child’s home… etc.”
3.
Clause 10(2)
it is respectfully submitted that the probation officer’s
assessment should not be considered adequate to decide on the criminal capacity
of a child but that this assessment should be referred to a professional with a
higher level of expertise.
4.
Clause
10(3) the word “moral” should be inserted into the phrase “assessment of the
cognitive, emotional, psychological and social development of the child”.
5.
The term “lock up” should be
excluded from the definition “police cell or lock up” in both the definitions
section and clause 27
(a). The broadness of the use of this term could result in children being
detained in highly unsuitable circumstances. Indeed Childline has had
allegations of children being kept in coldrooms, and storerooms without adequate
ventilation.
6.
All references to the Child Care Act
1983 should be changed to Children’s Act no 38 of 2005 as amended.
7.
Pre-sentence reports clause 72:
the following recommendations are made:
(1)
(a) reports should be prepared by a
probation officer or any other suitably qualified
person.
(2)
certain assessments take more time
than 4 weeks – a period of 6 weeks is preferable. Child sex offender
assessments require the development of a trusting relationship in order to
enable the child to discuss intimate details of his/her behaviour with the
assessing professional and also to enable the gathering of collateral
information.
A
further clause is recommended in this section:
(5)
The format, content and sources of information for the pre-sentence report
should be prescribed by regulation
8.
It is recommended that the schedules
at the end of the draft Bill be simplified.
Joan
van Niekerk
National
Coordinator
Childline
South
Appendix
1: excerpt from The
United Nations Committee on the Rights of the Child:
General Comment Number 10, Children’s Rights in Juvenile Justice, 2007, pp 8
and
C.
Age and children in conflict with the law
16.
The minimum age of criminal responsibility (MACR).
The
States Parties reports show the existence of a wide variety of minimum ages of
criminal responsibility. They range from a very low level of age 7 or 8 to the
commendable high level of age 14 or 16. Quite a number of States Parties use
two minimum ages of criminal responsibility. Children in conflict with the law
who are at the time of the commission of the crime of an age at or above the
lower minimum age but below the higher minimum age are assumed to be criminally
responsible only if they have the required maturity in that regard. The
assessment of this maturity is left to the court/judge, often without the
requirement of involving a psychological expert, and results in practice in the
use of the lower minimum age in cases of serious crimes. The system of two
minimum ages is often not only confusing but leaves much to the discretion of
the court/judge and may result in discriminatory practices.
In
the light of these wide range of minimum ages for criminal responsibility the
Committee feels the need to provide the States Parties with clear guidance and
recommendations regarding the minimum age of criminal responsibility.
Article
40 (3) CRC requires that States Parties shall seek to promote inter alia (see
under a) the establishment of a minimum age below which children shall be
presumed not to have the capacity to infringe the penal law, but does not
mention a specific minimum age in this regard.
The
committee understands this provision as an obligation for States Parties to set
a minimum age of criminal responsibility (MACR). This minimum age means the
following:
- children who commit
an offence at an age below that minimum cannot be held responsible in a penal
law procedure. Even (very) young children do have the capacity to infringe the
penal law but if they commit an offence when below the MACR the irrefutable
assumption is that they cannot be formally charged and held responsible in a
penal law procedure. For these children special protective measures can be
taken if necessary in their best interest;
- children at or above
the MACR at the time of the commission of an offence (or: infringement of the
penal law) but younger than 18 years (see also hereafter para. 19 – 21) can be
formally charged and subject to penal law procedures. But these procedures,
including the final dispositions, must be in full compliance with the
principles and provisions of the CRC as elaborated in this General Comment.
Rule
4 of the Beijing Rules recommends that the beginning of that MACR shall not be
fixed at too low an age level, bearing in mind the facts of emotional, mental
and intellectual maturity. In line with this rule the Committee has recommended
States Parties not to set a MACR at a too low level and to increase an existing
low MACR to an internationally acceptable level. From these recommendations, it
can be concluded that a minimum age of criminal responsibility below the age of
12 years is considered by the Committee not to be internationally acceptable.
States Parties are recommended to increase their lower MACR to
the age of 12 years as the absolute
minimum age and to continue to increase it to a higher age level.
17. At the same time, the Committee
urges States Parties not to lower their MACR to the age of 12. A higher MACR,
for instance 14 or 16 years of age, contributes to a juvenile justice system which,
in accordance with article 40(3)(b) CRC, deals with children in conflict with
the law without resorting to judicial proceedings, providing that the child’s
human rights and legal safeguards are fully respected. In this regard, States
Parties should inform the Committee in their reports in specific detail how
children below the MACR set in their laws are treated when they are recognized
as having infringed the penal law, or are alleged as or accused of having done
so, and what kinds of legal safeguards are in place to ensure that their
treatment is as fair and just as that of children at or above the MACR.
18. The Committee wants to express
its concern about the practice of allowing exceptions to a MACR which permit
the use a lower minimum age of criminal responsibility in cases where the
child, for example, is accused of committing a serious offence or where the
child is considered mature enough to be held criminally responsible. The
Committee strongly recommends that States Parties set a MACR that does not
allow, by way of exception, the use of a lower age.
19. If there is no proof of age and
it cannot be established that the child is at or above the MACR, the child
shall not be held criminally responsible (see also below para. 22).
20. The upper age limit for juvenile
justice.
The Committee also wants to draw the
attention of States Parties to the upper age limit for the application of the
rules of Juvenile Justice. These special rules for juvenile justice – both in
terms of special procedural rules and in terms of rules for diversion and
special dispositions – should apply, starting at the MACR set in the country,
for all children who, at the time of their alleged commission of an offence (or
act punishable under the criminal law), have not yet reached the age of 18
years.
21. The Committee wants to remind
States Parties that they have recognized the right of every child alleged as,
accused of, or recognized as having infringed the penal law to be treated in
accordance with the provisions of article 40 CRC. This means that every person
under the age of 18 years at the time of the alleged commission of an offence
must be treated under the rules of juvenile justice.
The Committee therefore recommends
States Parties which limit the applicability of their juvenile justice rules to
children under the age of 16 (or lower) years, or that allow by way of
exception that 16 or 17 year old children are treated as adult criminals, to
change their laws with a view to achieve a non-discriminatory full implementation
of their juvenile justice rules to all persons under the age of 18 years.
The
Committee notes with appreciation that some States Parties allow for the
application of the rules and regulations of juvenile justice to persons age 18
and older , usually till the age of 21, either as a general rule or by way of
exception.
[1] African Peer Review Panel of Eminent Persons: Country Review Report on
[2] The United Nations Committee on the Rights of the Child: General
Comment Number 10, Children’s Rights in
Juvenile Justice, 2007
[3] United Nations Guidelines for the Prevention of
Juvenile Delinquency (The
[4]
[5] [5] The United
Nations Committee on the Rights of the Child: General Comment Number 10, Children’s Rights in Juvenile Justice,
2007, pp 8 and 9.
[6] Dhabicharan, Master’s
Dissertation, UKZN, 2003.