CSIR CRIME PREVENTION CENTRE
SUBMISSION ON THE CHILD JUSTICE BILL
TO: THE PORTFOLIO COMMITTEE- ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT
BY: THE CSIR CRIME PREVENTION CENTRE
The CSIR Crime Prevention Centre (CPC) is represented on the Child Justice Alliance driver and reference groups. We fully endorse the contents of the Child Justice Alliance submission and this submission deals only with issues that we feel bear further articulation.
PART 1: GENERAL SUPPORT FOR THE BILL
We support the principles of the Child Justice Bill, which originated to establish a criminal justice process for children accused of committing offences that would protect their rights in accordance with the Constitution and international instruments. Once enacted by the Parliament of the Republic of South Africa, the Act is designed to promote ubuntu in the child justice system by:
· Fostering children's sense of dignity and worth
· Reinforcing children's respect for human rights and the fundamental freedom of others by holding children accountable for their actions and safe guarding the interests of victims and the community
· Supporting reconciliation by means of a restorative justice response
· Involving parents, families, victims and communities in the child justice process in order to encourage the reintegration of children who are subject to the provisions of the Bill.
It is submitted that extensive attention be given to the communication of the principles of the Bill, both to service providers and to communities. South Africans angry and often badly affected by crime will need to understand the notion of restorative justice if they are to support these principles, the benefits of which are not always immediately apparent.
The submission now deals with specific aspects of the Bill in relation to concern that the Bill does not specifically ensure that children already disadvantaged through their status as so called "street children" are not excluded from the benefits of the Bill.
Street children are the casualties of. economic growth, war, poverty, loss of traditional values, domestic violence, physical and mental abuse. Every street child has a reason for being on the streets. While some children are lured by the promise of excitement and freedom, the majority is pushed onto the street by desperation and a realisation that they have nowhere else to go. In many countries, street children are named after their main survival activities. What is obvious is that street children are poverty-stricken and their needs and problems are a result ot wanting to meet basic needs for survival. Street children go through the struggle of providing themselves with basic things such as food, shelter, health and clothing. Providing targeted interventions that meet the needs of street children requires an understanding of who they are, what they need, what they do and how they can be identified. 3
According to research undertaken by the Human Rights Watch, attention to street children has focused largely on their pressing economic and social plight - poverty, lack of shelter, denial of education, AIDS. prostitution, and substance. Civil and political rights violations against street children have been overlooked, symptomatic of the larger failure to take seriously the full scope of children's rights (in particular articles 37 and 20) enshrined in the Convention on the Rights of the Child.
Few advocates, let alone lawyers or prosecutors, speak up for these children, and street children rarely have family members or other concerned adults able to intervene on their behalf. Family members are often not informed of their children's arrest and detention in the first place. Contrary to popular belief, many street children actually have family members and homes to which they might return periodically, and are not orphans. 4
Chapter 3: Methods of securing attendance of child at Preliminary Inquiry
The constant mention of the " child's parent or an appropriate adult" is potentially problematic in the case of street children. It is submitted that alternative provision should be made to address the special circumstance of these children, specially in regard to section 11 (1)(b) and 11 (2)(b)(iii) that specify that a child may be released from police custody on condition that the child resides at a particular address.
Chapter 4: Assessment ot Child
The problem again in this chapter section 21 (3) is the issue of the persons that may attend the assessment, it is submitted that provision should be made to include for example the shelter caretaker of the child or person, or a representative from a diversion programme in the case of street children.
Chapter 6: Diversion
Central to the Act is the incorporation of diverting children away from formal court procedures.
Purposes of Diversion
According to the Child Justice Bill (chapter 6: section 44), the basic purposes of diversion are to encourage the child to be accountable for the harm caused, reintegrate the child back into the family and community as well as provide an opportunity for victims to express their views on its impact on them.
For completeness and clarity it is submitted that within the Bill's framework, strategies must also include some type of restitution to the victim and promote reconciliation between the child and the person(s) or community affected by the harm caused.
Benefits of diversion include preventing the child from having a criminal record as well as potentially preventing harmful stigmatisation of child offenders and the negative developmental consequences that often occur because of their contact with the criminal justice system. Within the Child Justice Bill, diversion options may include a range of programmes and/or a restorative justice approach such as family group conferencing and victim-offender mediation.
„Chanter 7: Chipd Justice Count
The areas identified in the Bill that will impact on the components and affect the functioning of "One-Stop Child Justice Centre is:
· Preliminary inquiries
· Information management system for monitoring and evaluation
· The establishment of a monitoring structure as proposed in the final Bill (currently proposed as a district child justice committee)
The impact ~ the preliminary inquiry will require a second magistrate for trials. The magistrate will need the experience and maturity to deal with preliminary inquiries and if understands diversion, will be able to make the appropriate decision regarding the case and the individual. It is submitted that in practice the Magistrate will chair the preliminary inquiry and believe that this is appropriate.
With the promulgation of the Child Justice Bill, there will be a need to establish a communication and support forum for magistrates to be able to share information, experience, co-ordinate approaches and diversion options.
When the Child Justice Bill is in place, it is submitted that it will be more applicable for a Department of Justice member to chair the steering committee and to be involved in the proposed Child Justice Committees as many of the decisions will be legislative based. It is proposed that a " Child Justice Committee at district level" or a monitoring structure be established, and this will reed to be established once the Bill is passed. This is likely to involve monthly meetings at district level with stakeholders to address policy and service issues, and to provide a monitoring mechanism.
The Department of Justice and Constitutional Development will have an important role in communicating and awareness and training for Magistrates not only at the new centres, but: also in the outlying districts and court. In addition, minimum standards should be available to discuss with the Chief Magistrates. Experience has shown that in the smaller areas, there is much resistance to change and magistrates are suspicious. Unless they are engaged, they are less likely to take it forward. Magistrates for One-stop Child Justice Centres need to be identified as soon as possible in order for them to be geared to understand, accept and implement the Bill; and to set up the required infrastructure.
There is clearly a need to identify the purpose of the centre and determine the minimum core services and functions of a One-Stop Child Justice Centre. This will impact directly on the infrastructure and capacity of the centre. It is submitted that the capacity and design of the centre will need to be determined through research to determine the number of youth and potential number of children the cent-c will serve. The basic requirement is that all four components work together in the same place. This is particularly important for the police and court. The basic infrastructure elements to ensure this service is a building and accommodation; resources such as vehicles and furniture; professional capacity that has been trained to meet the service requirements (and a translator for court); a network of support and diversion programmes; and the establishment of financial contracts for example with Telkom because much of the diversion and probationary services relies heavily on telephonic communication.
Participatory management and shared responsibility for decisions requires infrastructure to be able to support this approach, and the model of One-Stop Child Justice Centres should accommodate this. For example, 'work stations' that are open for people to use, access computers and use the internet for research and discussion forums would encourage improved report writing, reflection on work and developing greater understanding of the services. This includes developing fair procedures for the allocation and use of centre resources, especially vehicles and computers.
On reflecting on the process and difficulties of establishing an integrated service, it is submitted that guidelines, protocols and service agreements are put in place at the beginning to prevent conflicts and differences that impacted negatively on the service delivery. These would need to outline clear parameters of work and how to interface with other departments; clear roles and functions for centre management; accountability and reporting of components and the centre; and to clearly state provincial, regional and district level operations and support. Furthermore, a detailed and open induction programme is imperative for new people, and clear appointment process of people is required to ensure fairness. This process must include screening, training, motivation and building capacity.
The Department of Correctional Services is also part of the child justice process but a-e often left out of the One-Stop Child Justice Centre model. It is therefore important for the development of the model to engage with the Department of Correctional Services to ensure that their services are integrated with the delivery process. Ideally, one prison in an area should provide facilities and services for young people, rather than having a few children in all prisons. In addition, Correctional Supervisors could have an office at the centre to improve co-ordination and delivery of child justice practice. 5