0800 05 55 55 Welcomes you to this workshop on the CHILD JUSTICE ACT

1. 0800 05 55 55 Welcomes you to this workshop on the CHILD JUSTICE ACT

2. The Child Justice Act Presentation by Joan van Niekerk Childline South Africa joanvn@childlinesa.org.za

3. 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

4. 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

5. 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

6. 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

7. 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.

8. 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

9. Other international commitments include • The United Nations Rules for Juveniles deprived of their liberty

10. 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:

11. 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.

12. 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

13. 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

14. 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.

15. 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.

16. 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.

17. 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.

18. 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

19. 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

20. Chapter one S1. Lists definitions – these are important to look at to ensure that we all speak the same language. Examples: • 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” • “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. “

21. More definitions • Acknowledges responsibility • Diversion • Restorative Justice.

22. 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.

23. 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

24. 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.

25. 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

26. 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

27. 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.

28. 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.

29. 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

30. 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.

31. 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.

32. 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.

33. 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

34. 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.

35. 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

36. 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.

37. 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.

38. 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

39. 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

40. 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

41. 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

42. 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

43. 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

44. 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.

45. 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

46. 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.

47. 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.

48. 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.

49. 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.

50. 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