November 2008

1. Presentation to Child Justice Bill Seminar of JOASA, Gauteng: Provisions of Child Justice Bill; and Implementation Strategy for Child Justice Bill, No B49B of 2008 November 2008

2. Introduction: • Thank you for inviting the Department of Justice and Constitutional Development to address you on issues relating to the Child Justice Bill and Children in Conflict with the Law. • The DoJCD is the convenor and Secretariat of the Inter-sectoral Child Justice Steering Committee (ISCCJ), which meets on a monthly basis to monitor and intervene on issues relating to children in conflict with the law. • This Committee is Chaired by Adv S Said, the Chief Director: Promotion of the Rights of Vulnerable Persons at present. • The Child Justice Bill now makes provision for this Committee to be chaired by the DG: DoJCD. • The Lower Court Management Committee (LCMC) of the Judiciary is represented by Mr M Djaje, Regional Court President of Gauteng; and Mr G Jonker, Chief Magistrate, Johannesburg. • Mr J Ngelanga, Magistrate of Justice College, also participates in the ISCCJ-meetings. • As we regard Magistrates as most important to protect and promote children’s rights in the Criminal Justice System, we would therefore also wish to extend our invitation to members of JOASA to attend the monthly ISCCJ-meetings nationally and the meetings of the Provincial Child Justice Fora in each province.

3. Child Justice Bill, No B49B of 2008: • The Child Justice Bill No B49B of 2008, was passed by the National Assembly on the 25th June 2008; and by the National Council of Provinces on the 25th September 2008. • The minor amendments made by the NCOP, will be deliberated upon in the NA during November 2008, where-after it will be passed and submitted to the President for signature. • The approach followed by Parliament when deliberating upon and passing the Bill, was as follows: • The need to balance the rights of the child with the rights of victims of crime; the need to fight crime and to ensure the safety and security of the community. • The need to ensure that the State has the necessary capacity to effectively implement the new criminal justice system for children decided upon.

4. 4 Overview: The Child Justice Bill, 2008 • The purpose of the Child Justice Bill is to establish a criminal justice system for children, who are in conflict with the law and are accused of committing offences, in accordance with the values underpinning the Constitution and the international obligations of the Republic; • As well as amongst others, to provide a mechanism for dealing with children who lack criminal capacity outside the criminal justice system; • To make special provision for securing attendance at court and the release or detention and placement of children; • To make provision for diversion of children outside the Criminal Justice System where appropriate; and • To make provision for new sentencing options for children found guilty of having committed an offence. • Implementation date: 1st April 2010.

5. 5 Overview of provisions of the Child Justice Bill: • Children under the age of 10 years, will be handled in terms of a whole new procedure: they will be referred to DSD’s Probation Officers to draw up a plan for them and their families and to monitor why the children came into trouble. This may also include the following: • Referring the child to a children’s court; • Refer the child for counselling or therapy; • Refer the child to an accredited program designed specifically to suit the needs of children under the age of 10 years; • Arrange support services for the child; • Arrange a meeting with the child, parents, caregiver and/or family to discuss the plan for the child; or • The Probation Officer can decide to take no action. • Assessment of all children who commit crimes; • Preliminary inquiry: Every child who is alleged to have committed an offence, must go to a preliminary inquiry, which is deemed to be the first court appearance, unless the child is under 10 years of age or the matter is diverted by the Prosecutor.

6. Overview of provisions of Child Justice Bill, continued: • Diversion: all children who commit crimes, no matter how serious, qualify to be considered for diversion; • Range of non-custodial sentencing and Restorative Justice sentencing options for children; • Automatic appeal and review in cases where children have been sentenced to custodial sanctions; • Expungement of criminal records.

7. Preliminary Inquiry: • First appearance of child at court; • Within 48 hours after arrest; or time period as specified in warning or summons to appear in court; • Informal pre-trial procedure which is inquisitorial in nature; • May be held in court or any other suitable place; • Being piloted in Bloemfontein One Stop Child Justice Centre, since May 2007; • Objectives of preliminary inquiry: • Consider assessment report of Probation Officer; • Establish whether matter can be diverted before plea;

8. Objectives of Preliminary Inquiry, continued: • Identify suitable diversion option, where applicable; • Establish whether matter should be referred to Children’s Court; • Ensure that all available information relevant to the child, his or her circumstances and the offence are considered in order to make a decision on diversion and placement of the child; • Ensure that the views of all persons present are considered before a decision is taken; • Encourage the participation of the child and his or her parent or an appropriate adult in decisions concerning the child; and • Determine the release or placement of a child, pending- • The conclusion of the preliminary inquiry; • The appearance of the child in a child justice court; or • The referral of the matter to a children’s court, where applicable.

9. Diversion: • A key aspect of the Bill is diversion of children who come into conflict with the law, away from the formal court procedures. • Diversion began to be applied as from 1992 without a proper legislative framework and the practice has increasingly developed. Some case law on restorative justice has developed, but the legislative framework provided for in the Bill, will contribute towards uncertainties being removed and to ensure a clear, transparent procedure, and will serve to hold decision-makers to account. • Diversion allows for the child to be referred to program/s outside the formal criminal justice system, while the child is held accountable for his/ her actions. The child is therefore handled as an individual to help prevent re-offending, which will also promote public safety. • The Bill therefore provides for 2 levels of diversion, dependent upon the seriousness of the crime and the child’s circumstances; and provides for extensive checks and balances.

10. Diversion, continued: • The Bill only allows for diversion to be considered as a possibility if the child acknowledges responsibility for the offence, and if he or she has not been unduly influenced, to make an acknowledgment to this effect. • The presiding officer, probation officer, prosecutor and legal representative have crucial roles to play in this regard. • It is important to stress that diversion is not meant to widen the door to adults more readily using children to commit crime, and therefore section 92 of the Child Justice Bill was included, for action against adults in this regard. • The Portfolio Committee was clear that the provisions of the Bill on diversion, is sound; but had concerns about the capacity of the diversion service providers, which need to be significantly developed. Therefore, the Bill makes provision for the requirement that the DSD should “ensure availability of resources to implement diversion programs, as prescribed.” Monitoring of the programs and the diversion service providers, is also extensively provided for, as well as the outcomes of the diversion programs for children.

11. Overview of Provisions of Bill, continued: • The minimum age of criminal capacity has been raised from 7 to 10 years; and will be reviewed after 5 years. • Placement of children in prison, should be used as a measure of last resort, whether for children awaiting trial or sentenced children; • Legal representation for children by the Legal Aid Board if children cannot afford private legal representation; • Expungement of criminal records of sentenced children and children diverted from the Criminal Justice System, on application to the DG: DoJCD or Minister: DoJCD.

12. Victim impact statements and Child and Youth Care Facilities • Key principle of Restorative Justice, is that of reconciliation; and the Bill therefore provides that the views of the victim, their families and others connected to the victim, must be taken into account during diversion and formal trial-procedures, including victim impact statements for purposes of sentencing. • The implementation of the above provisions requires sensitivity to the plight of victims. • The Department of Social Development will be responsible for Secure Care Facilities (Child and Youth Care Facilities) for both awaiting trial and sentenced children an plan to increase these Centres countrywide. One Stop Child Justice Centres, will be aligned with such Centres.

13. Detention options for children: • The current ban on children under 14 awaiting trial in prison, has been included in the Bill. • The new sentencing option of children under 14 serving a sentence in a child and youth care facility for sentenced children; and there-after at age 18, to be considered for transfer to a prison for the serving of the rest of the sentence, has been included. • The Committee felt that the issue of whether exclusion of imprisonment for under-14 year old’s should apply to a child at time of sentencing, as at present, or at time of commission of offence, may require further consideration in future. • The Constitution requires children in conflict with the law, to be kept separately from adults. The Bill provides that this must also apply when children are being transported to and from their place of detention and court. • The Committee has reluctantly allowed for exceptions where it is simply not possible otherwise, but required that this section be closely monitored and reported upon.

14. Sentencing • Objectives: • To encourage the child to understand the implications of and be accountable for the harm caused; • Promote an individualised response which strikes a balance between the circumstances of the child, the nature of the offence and the interests of society; • Promote the re-integration of the child into the family and community; • Ensure that any necessary supervision, guidance, treatment or services which form part of the sentence assist the child in the process of re-integration; and • Use imprisonment only as a measure of last resort and only for the shortest appropriate period of time.

15. Sentencing, continued: • Impact of offence on victim; • Pre-sentence reports: compulsory where compulsory residence or imprisonment is recommended; • Sentencing options: • Community-based sentences; • Restorative justice sentences; • Fines or alternatives to fine; • Sentences involving correctional supervision; • Sentence of compulsory residence in child and youth care centre; • Sentence of imprisonment; • Postponement or suspension of passing of sentence; • Failure to comply with certain sentences. • Non-custodial Sanctions’ pilot projects during 2008/09, in: • Odi, North-West; • Randburg, Gauteng; • Kimberley, Northern Cape; • East London, Eastern Cape; and • Bellville, Western Cape.

16. Schedules: 16 Schedule 1: less serious offences, which can be diverted by a prosecutor and where the child can be released on own recognisances or into parents’ or caregivers’ care, from detention; Schedule 2: more serious offences, which can be diverted by a preliminary inquiry; and where the child, if not released into parents’ or caregivers’ care, should be detained in a Child and Youth Care Facility; Schedule 3: most serious offences, which can only be diverted by a child justice court, in terms of very limited guidelines to be drafted by the National Director of Public Prosecutions; and where the child should be detained in prison whilst awaiting trial, if 14 years or older, except if certain prescribed circumstances exist.

17. 17 National Policy Framework and establishment of Intersectoral Committee on Child Justice • The drafting and submission of a National Policy Framework for the Child Justice Bill, before the implementation of the Act on the 1st April 2010, has been provided for; as well as • The establishment of a Committee chaired by the DG: DoJ&CD, to monitor and report upon the implementation of the Child Justice Bill. • This will necessitate the approval of a strategy for implementation, which is further discussed below. • National Policy Framework responsibilities: • Joint policies and individual Departmental policies; • National directives and instructions; • Training; • Monitoring and evaluation of implementation of Bill; • Regulations.

18. Child Justice Information Management System: • Establishment of an integrated information management system to enable effective monitoring, analysis of trends and interventions, to map the flow of children through the child justice system and to provide quantitative and qualitative data relating, among others, to- • Arrest or methods of securing attendance at criminal proceedings; • Assessment; • Preliminary inquiries; • Diversion; • Children awaiting trial; • Bail and placement; • Trials; • Sentencing; • Appeals and reviews; • Sexual offences committed by children; • Children who lack criminal capacity as provided for in section 7(1); and • Any other relevant factor.

19. 19 Conclusion and recommendations: • The ad hoc-work done by the National ISCCJ; Provincial Child Justice Fora; and inter-sectoral Departments during the past few years, supported by the NGO service providers, have led to the prioritisation of children’s matters in criminal cases and the reduction of the numbers and length of time children await trial in prisons. • The Child Justice Bill now gives legislative background to the practical work being done; and continued efforts to improve co-ordinated services to children in conflict with the law, will lead to the effective and proper implementation of the Child Justice Bill. • We also need to ensure the development of the regulations, National Policy Framework and applicable policies and guidelines during 2009. • As we regard the Magistracy as a key role-player in this regard, we look forward to a good working relationship between JOASA, the DoJCD and the ISCCJ.

20. Any questions? THANK YOU FOR YOUR ATTENTION 20

21. 21 Annexure: Implementation strategy for Child Justice Bill • Strategy for implementation and costing of the adopted Child Justice Bill, is being revised and consulted upon. • Dates of strategic importance:

22. 22 Important dates for implementation strategy and National Policy Framework:

23. 23 Important dates for implementation strategy and National Policy Framework, continued:

24. Registers

25. Policies