Rights & Law
What Happens When a Child Is Arrested: A Step-by-Step Explanation Of South Africa’s Child Justice Act
When a child under 18 is alleged to have committed an offence in South Africa, they do not go through the ordinary criminal justice system. Instead, they are processed under the Child Justice Act 75 of 2008.
What this piece covers
The Child Justice Act focuses on getting children back into society, rather than just punishing them.
This article will walk you through what happens when a child under 18 is arrested in South Africa.
What the Child Justice Act Is For
The Child Justice Act 75 of 2008is the South African statute that handles cases where a child is alleged to have committed an offence. The law aims to deal with these cases to keep the child out of harm's way and help them become a productive adult.
The Act defines a child justice courtas any court hearing a case involving a child. This could be about bail, a plea, a trial, or sentencing. So, any court dealing with a child's criminal case is a child justice court.
The Child Justice Act works alongside the Children’s Act 38 of 2005, which deals with the care and protection of children generally. The Children's Act 38 of 2005 is invoked when a court decides that a child needs care, rather than punishment.
The main participants at a preliminary inquiry are:
- A magistrate, who heads the inquiry
- The child
- The child’s parent, guardian or appropriate adult, like a family member
- A prosecutor
- A probation officer
- The police officer who arrested the child
- An attorney, either from Legal Aid or a private firm.
From Arrest to Assessment: The First Mandatory Step
When a child is alleged to have committed an offence, the process of assessing the circumstances starts immediately. Under the Child Justice Act, every child who is arrested for an offence must be seen and assessed by a probation officer, who sends a report to a child justice court. This is a mandatory assessment, and the probation officer will look at the child's family situation, schooling, and home environment, and will meet them. Then, the child must typically be released after 48 hours, taken back to their place of residence, or placed in a place for children - but must not be held for longer than a probation officer’s reasonable stay required to complete their assessment.
Assessment is the first step to determining whether the child should: - Be diverted to a programme where they can share experiences with other children and get help - Have their case referred to a children’s courtcourt for decisions on protection measures - Be prosecuted in a child justice court
The Preliminary Inquiry: An Informal Courtroom for Children
An informal preliminary inquiry is a key step in protecting a child from normal punitive treatment.
After a child has been assessed, an informal preliminary inquiry must be held within 48 hours of arrest.Where the offence is a minor one on the list of Schedule 1 offences, a prosecutor can divert the case, in the child's best interests.
At the preliminary inquiry, the magistrate and others check that everything has been put in place by the police and others. They then discuss whether the child should be:
- Referred to a diversion programme
- Assessed as needing care and protection, and referred to a children's court
- Taken to a child justice court for trial
Diversion: How a Case Can Avoid Trial
Diversionis the concept of dealing with a child allegedly having committed an offence outside of the criminal justice system. It brings children into community-based programmes, often with other children. So instead of a child facing harsh punishment, diversion gives them the chance to make amends and learn.
There are a few diversion opportunities:
A prosecutor can divert the case even before a preliminary inquiryfor a Schedule 1 minor offences. The National Policy Framework on Child Justice (Child Justice Act 75 of 2008), states that this helps the child avoid court appearances altogether. For this diversion to happen, the child must acknowledge responsibility, be over the minimum age of criminal capacity, and the case must still have a prima facie showing. The framework also advises that the child and, if available, their parent or guardian should consent to the diversion option.
Then, an inquiry magistrate can divert the case even during the preliminary inquiry,provided the prosecutor indicates that the matter is a possible candidate for diversion.
Finally, even in a child justice court, during the trial, a child justice court can still divert a case- but only before the State closes its case, and shows the child may be diverted.
The stages of diversion are clearly laid out in the policy, such as:** a child must acknowledge responsibility for the offence, and must be over a certain age of criminal capacity, with the prosecutor on board with diversion. **
When a Child Needs Protection, Not Prosecution
One of the main jobs of the preliminary inquiry is to see if a child likely needs care and protection, rather than facing prosecution. If this is the case, their case is sent to a children’s court.
This is where the Child Justice Act connects with the Children’s Act 38 of 2005, which deals with the welfare and protection of children in general. The Children's Court can see if the child lacks proper parental care, and make a plan for them.
So while the Child Justice Act looks at what happened in the past, via assessments and diversion, the Children's Act looks to the child's future and their relation with family and community.
When Cases Go to a Child Justice Court
When a case isn't diverted or referred to a children's court, it goes to a child justice court- an informal, more child-friendly space. The child justice court will deal with the criminal case. A child justice court has all the power of an adult criminal court, but is trained to handle children. The child justice court will listen to the case and determine the outcome, like a conviction or release.
Even during a child justice court during the trial, diversion might still occur before the case is concluded. But only if the prosecutor says it might be diverted. The child justice courts work this way to protect the child's best interests.
It's only when all diversion options are exhausted that a criminal case against a child is concluded in the child justice court.
Results
The results of a child justice court are kept in the documents of the case, and turnover rate at diversion schemes are hard to come by. So it's difficult to see how children are faring in the child justice system. Official guidance suggests better outcomes when a child is diverted, although no arrest-to-completion time is given.
The National Policy Framework on Child Justice 2018 also calls for measurement and monitoring of the success of child justice. But there is no reporting that it was done.
Without reporting, it's difficult to know if South African children are being kept safe and out of the criminal justice system, which is the ultimate goal of the Child Justice Act.