ORAL SUBMISSION ON THE CHILD JUSTICE BILL (7a)
24 FEBRUARY 2003
BY: Resources Aimed at the Prevention of Child Abuse and Neglect (RAPCAN)
1 ABOUT RAPCAN
RAPCAN is an acronym for Resources Aimed at the Prevention of Child Abuse and Neglect. Since the organisation was started in 1989 by the University of Cape Town’s Department of Paediatrics and Child Health, it has focussed its attention primarily on child abuse prevention. This focus was (and still is) made tangible by means of training and awareness workshops, and the production and dissemination of resources. In the last few years, with a changed political situation in South Africa, this focus has expanded and incorporated legislative advocacy. Even more recently, RAPCAN has moved into providing support for children entering the criminal justice system.
RAPCAN was registered as a Section 21 Company (i.e. a not-for-gain company in terms of the South African Companies Act) in 1997, and registered as a non-profit organisation (NPO number 010-744). The Board of Directors consists of 9 members, and there are 12 staff members. The office is in Observatory, in Cape Town in the Western Cape, although RAPCAN works nationally and indeed throughout the SADC region.
Our definition of "child" is a person under the age of 18 years. Our definition of child abuse is premised on and informed by the basic children’s rights enshrined in the United Nations Convention on the Rights of the Child (ratified by South Africa in 1995) and the Organisation of African Unity Charter on the Rights and Welfare of the African Child (ratified by South Africa in 2000). Thus it encompasses all aspects of violations of children’s rights.
RAPCAN’s strategic responses to the enormous problems faced by South African children aim to tackle these from both a preventative and a rehabilitative perspective, and focus on training and awareness-raising interventions. The workshops that we run are aimed at both adults and children, and deal with awareness, personal safety, causes, identification, legal issues, medical issues and criminal justice issues with regard to child abuse and neglect. We also offer self-esteem and child rights workshops to children, and sexuality education workshops to adolescents. For teachers, particularly, we offer workshops on positive discipline.
To expand upon and complement the work that we undertake by training and raising awareness, we run a Resource Centre through which we make available, disseminate and produce resources; we actively engage in advocacy aimed at ensuring an appropriate legislative and policy framework for the protection and promotion of children’s rights; and we are involved in a limited amount of rehabilitation, particularly with regard to the Criminal Justice System.
2 THE CHILD JUSTICE BILL
The setting up of a separate justice system for children in trouble with the law is long overdue. Children are a vulnerable group of persons in society and the Constitution has identified them as in need of special protection. As South Africa has ratified the Convention on the Rights of the Child (done in 1995), we have certain obligations with respect to legislation and policy affecting all children, including those in trouble with the law. The Bill is aimed at protecting the rights of children accused of committing crimes as well as regulating the system whereby a child is dealt with and ensuring that the roles and responsibilities of all those involved in the process are clearly defined in order to provide effective implementation. The effect of the Bill being adopted as legislation will be to revolutionise the criminal justice system in South Africa in as far as it affects children in conflict with the law. The Child Justice Bill creates a specialised criminal procedure system designed to expeditiously manage young offenders in a co-operative and holistic manner. The various facets of the Bill are interconnected and are co-dependant in a way that ensures maximised service delivery to children by the State and civil society.
This is a development applauded by RAPCAN, in that the Bill addresses a number of issues that will create a judicial system that is appreciative of the vulnerability and the needs of children in trouble with the law. As well as addressing the fact that those children who are in trouble with the law may have less of an ability to determine right from wrong. In particular, the inclusion of provisions for assessment and diversion is critical as these practices that are of paramount importance in the process whereby proper interventions and treatments for young offenders are identified and put into operation as a means towards rehabilitation. As a result the Bill, introduces a child justice system aimed at ensuring that children who are capable of being diverted away from the system are, and that children who are serious offenders and against whom the community needs to be protected are dealt with accordingly. This accords with the UN Convention on the Rights of the Child, which emphasises the fact that the best interests of the child need to be balanced against the interests of the community to be safe and secure. While ensuring that a child’s sense of dignity and self-worth are recognised, the Bill also provides for mechanisms that ensure that a child respects the rights of others. In this respect the formal introduction of diversion, and the underlying principles of restorative justice, into our child justice system is very exciting and encompasses the ultimate goal of achieving a system that allows child offenders to participate in a meaningful process of recognising their actions, making amends for them and preventing re-offending.
In addition, the delays and abuses that systematically occur in the present system can be avoided by the adoption of the clauses in the Bill that provided for time periods in which certain procedure must be completed and that set out minimum standards for the treatment of children who are arrested, detained and pass through the criminal justice process.
3 SPECIFIC ISSUES IN THE BILL
RAPCAN is in agreement with a number of the provisions contained in the present Bill and submit that they should be included in the final legislation. However there are areas of the bill that need to be clarified to ensure that no matter which interpretation method is applied the objectives and outcomes of the bill, as laid out in the memorandum and Chapter 1, will be achieved.
Firstly we wish to highlight those of particular relevance and importance to young sex offenders.
" Any other condition appropriate to the circumstances of the child and in keeping with the principles of this Act, which promotes the child’s reintegration into society."
It is submitted that this provision allows for innovative and individualised responses to children’s behaviour and is in keeping with the objectives and principles of the Bill.
Secondly there are some provisions that we suggest are problematic for various reasons. And these apply to all children who are in trouble with the law.
Definition of "appropriate adult"
This does not make sense in the light of the fact that a primary care-giver necessarily is a factual custodian and is, in most instances, also a member of the child’s family.
Definition of diversion
The definition of diversion in the Bill is potentially confusing, and the terminology " to the informal procedures established by Chapter 5" exacerbates this confusion as it refers to the preliminary inquiry. We suggest that the wording be changed to "to the informal options established in chapter 6 by means of the procedures established in chapter 5".
Age estimation and determination
In the SALC draft Bill, the provisions relating to age estimation and age determination were contained in the same chapter as criminal capacity. It is submitted that this was a logical approach as both issues deal with the age of a child and questions on age usually arise at the outset of a particular matter and so a section at the beginning of the Bill on this, would make sense. In addition, there was a clear grouping of all the responsibilities and powers of the various role-players that created a holistic and easy to follow picture of how age should be estimated and determined. However, the present Bill has moved the sections dealing with age estimation and age determination to various parts of the Bill and so it is now quite difficult to read these sections without having to move from place to place
Chapter 11 – Monitoring of child justice
The original SALC draft Bill had extensive provisions regulating the monitoring of the Bill. These have now been included in the regulations. We suggest that the monitoring provisions should be reinstated in the Bill. On account of the various number of government departments that have responsibilities under this piece of legislation, the real possibility for violation and infringement of children’s rights that can occur in the system and the critical scrutiny of the general public towards the criminal justice system as a whole, it is desirable that proper monitoring systems be in place immediately and that they are included in the primary legislation to ensure the highest form of accountability.
In addition this Bill aims to encourage the entrenchment of the notion of restorative justice. Coupled with this one needs to consider the actual effects and outcomes and impact of such justice, to ensure that it continues to be a positive influence for those exposed to it. This considers then the monitoring aspect of the Bill.
Consideration also needs to be made as to the effectiveness and application of the Diversion options available to the courts. With regards to their impact on a child, their relevance within today’s society (for example any diversion that gives vocational skill training) and their effectiveness, to ensure that the best interest of the child is continued to be served after the judicial.
No indication is given as to any regulations regarding the joinder. Such regulations are needed to guide decisions to grant a joinder, so as to ensure that there is consistency and protection of the child’s rights and their best interests. One must consider that a child processed through an adult court as a witness undergoes stress and trauma, and that this has necessitated a change in our judicial system. It can be recognised that a child already in trouble with the law is more likely to be traumatised and distressed if processed through an adult court, and with their co-accused. Especially if they were intimidated into the criminal activity by said adult/ co-accused person with whom their case is to be joined.
Section 57 Separation and joinder of trials involving children and adults
(2) An application for such a joinder must be directed to the child justice court in which the child is to appear after notice to the child, such person and their legal representatives.
Further to this but still considering joinders
S 57 (4) The court to which the matter has been transferred must afford the child concerned all such benefits conferred upon such child by this Act.
It may be important to note that once a joinder has been granted, the child will move to the court of that other person, does this not undermine the creation of courts specific to children and their needs. And if a child is to benefit from the Act, then one needs to ensure certain criteria such as the courtroom itself as in Section 50 (2)(a) and (b), the language in use and the attendance of the public to such a case.
In the United Kingdom, Anderson raises that where a ‘youth is jointly accused with an adult then proceedings are initiated in the adult court, however the case may be remitted to the juvenile court where possible for hearing and if not possible then for sentencing. The Bill does not state whether a child appearing in an adult court in a joinder case will be remitted to a child court for sentencing, or will be sentenced under adult conditions. One is to assume that "benefits" (s57(4)) would ensure that the child is given a sentence in line with the child justice bill, however we wish to prevent any confusion or discrepancy between cases. Thus we would propose that the Bill include the provision that the case be referred back to the Children’s Court, at least for sentencing.