Child Justice Bill: hearings

NDPP
Legal Aid Board
Office of the Inspecting Judge
City of Cape Town
Open Society Foundation
UMAC
NICRO
Institute of Criminology, UCT
Community Law Centre, UWC

This submission is made by the Child Justice Forum and is endorsed by all its members. This submission consists of two parts, the first of which will provide the history, background, tasks and successes of the Child Justice Forum (a provincial body) monitoring child justice and the second part will argue for the inclusion, creation and establishment of such monitoring structures at all levels to be included in the body of the Child Justice Bill.

Experience in the benefit of a Provincial Level Monitoring Committee has been gained through the practical history of the Western Cape Child Justice Forum over the past three years.

In 2000 the Western Cape Provincial Administration was taken to court by outspoken opposition members of parliament against the constitutional violation of children's rights. The issue involved 600 awaiting trial youth detained in the Province, some kept longer than six months in overcrowded and appalling circumstances.

In March 2000 a meeting of Provincial stakeholders responsible for the implementation of the system, most notably the South African Police Service, the Department of Justice, Correctional Services, Social Services, Education and key non governmental organizations was convened to address this issue and was the genesis of the Western Cape Child Justice Forum.

A detailed planning process followed to highlight the key problem areas identifying specific tasks and time frames. This provincial committee oversaw the entire process and over a five-month period the number of youth detained were reduced to less than one hundred. This however requires ongoing intervention to maintain.

At the heart of the problem that led to the court case and which will continue to bedevil the best intention of the Child Justice Bill is poor to non-existent intersectorial co-operation and planning and Departments with no previous history in the field unequipped and unprepared for the new challenges. We believe the lessons learnt through this process and the valuable gains made in managing the Child Justice System are motivation for the creation of such monitoring structures in the Bill.

Over the years the Child Justice Forum have been able to monitor numbers of awaiting trial children, work on the establishment of one stop facilities, champion the utilization of options such as diversion and promote restorative justice - all core components of the child justice system.

The latest version (August 2002 version which was introduced into parliament of the Child Justice Bill under chapter 11 provides for the monitoring of child justice but leaves the establishment of these monitoring bodies and procedures to be made by regulations.

Section 80(1) of this version of the Bill particularly states that "the cabinet member responsible for the administration of justice must make regulations regarding the procedures to be put in place to monitor and assess the proper application of and compliance with this Act". .

However, chapter 12 of the draft bill of the South African Law Commission provided for the establishment and regulation of Child Justice Committees at district level, the establishment of a provincial office for Child Justice and the establishment of a national office for Child Justice. Provision for the establishment of these structures was made in the primary legislation in sections 104-114 which also clearly set out the various role, powers, responsibilities and duties of each of these structures.

This submission argues for the reinsertion of such clauses (which adequately spells out the functions, role and duties of such structures) in the body of the Act as opposed to it being left to regulations. This submission further calls for these structures to be established at district level, provincial level and national level to ensure the proper planning and implementation of the Child Justice Bill. To leave these structures to be established by way of regulations, would result in unnecessary delays as the implementation of the new Child Justice System would require substantial planning, training and oversight in order for the various departments to fulfill their obligations under the new system.

The need for monitoring mechanisms at all levels is not new and is recognized in facilities such as the Community Police Forums which provide for both area and provincial boards. The value of having monitoring structures in place can certainly be drawn from the experience of the Child Justice Forum as highlighted above.

In conclusion we believe that the provision for the creation of monitoring structures at all levels and for these to be effective is best done when incorporated in the body of the Act. This will prevent any unnecessary delays and will certainly provide the platform and legal obligation to immediately put in place monitoring structures or to alternatively formalize any current existing child justice monitoring structures. The incorporation of the monitoring clauses found in the South African Law Commission version of the Bill also clearly identifies who should form part of these structures, the role they need to fulfill and also the duties and functions which need to be performed. It is submitted that the original clauses be reinserted into the body of the Act as opposed to leaving this to the regulations.

In conclusion we also state our wish to make an oral submission to the Committee

Yours sincerely

Sean Tait

Secretary

Appendix 2:
SUBMISSION ON THE CHILD JUSTICE BILL
TO: THE PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT
BY: SAYSTOP - DIVERSION PROGRAMME FOR YOUNG SEX OFFENDERS
Partners: Children's Rights Project, Community Law Centre, UWC

This submission consists of two parts. The first section consists of the background to SAYStOP and a general comment on young sex offenders and the Child Justice Bill. The second part consists of specific comments on sections in the Bill.

SAYStOP was formed in 1997 for the purpose of seeking innovative and effective interventions to treat and manage young sex offenders with the aim of preventing a pattern of deviant behaviour from being established and decreasing the possibility of further offending.

It was of concern to a number of individuals in the Western Cape that there was an increase in the cases involving children who commit sexual offences and despite charges being laid cases were not being prosecuted. The reason for this it seemed was that a number of cases were regarded as experimental and in other cases the charges were withdrawn due to the young age of the child alleged to have committed the offence or the relationship between the child and the victim.

This results in children not being held accountable for their actions and returned to the community without any referral to a programme that would assist them to understand and change their abusive behaviour.

As a result the SAYStOP project has developed a programme that can be used to divert children from the criminal justice system or used as an alternative sentence. The programme is particularly beneficial as it provides constructive alternatives to existing sentencing options and by diverting children it holds them responsible and accountable while attempting to address the reasons for the offending behaviour and potentially provide an opportunity for reintegration into the community.

The project partners with the State in so far as the service providers i.e. facilitators of the programme are probation officers in the employ of the Provincial Department of Social Services. These probation officers are then trained by the SAYStOP project and after the training they continue to receive mentoring services and follow up site visits to assist them in their facilitating. The SAYStOP programme also offers a telephonic advice service and a newsletter to keep the facilitators updated on developments.

The facilitators run groups of children referred to the programme throughout the Western Cape and the programme has recently been extended to the Eastern Cape as well. The programme has received numerous requests from Gauteng, Northern Province and the Northern Cape for the programme to be extended to those areas because of the lack of services and interventions available for young sex offenders and the obvious need for them.

Children who attend the programme are selected on a number of criteria:

• Age: the programme accepts children aged between 12 and 18 years, however most referrals are of children aged between 12 and 16 years. It is thought that children younger than 12 have difficulty grasping the abstract concepts contained in the programme and also have a limited attention span.
• Offence: the programme deals with children who have committed a crime of a sexual nature. However in determining whether to accept a particular child, the nature of the offence is examined in order to determine if it was exploratory in nature. In addition the programme will only accept children accused of crimes where there are minimal aggravating circumstances. In other words children involved in a violent sexual assault or gang rape would not be accepted on the programme. Furthermore the child must accept responsibility for his or her actions
• Address: the child must have a fixed address
• Guardian: the child must have a parent or guardian or care-giver to take responsibility for ensuring the child's attendance at the sessions.

The programme consists of 10 sessions usually run once a week for 2 hours at a time. As stated, some groups have been adapted because of geographical difficulties associated with travelling to one place for a ten-week period.

• Session 1: Crime awareness - informs the child of the aims of the programme, nature, causes and consequences of crime etc.
• Session 2: Self-esteem - broadens the participants self knowledge, creates awareness of factors which influence their self concept and promotes a positive attitude towards themselves
• Session 3: Understanding my body - examines the changes that take place in boys and girls bodies as they enter puberty and normalises the feelings that go with these changes
• Sessions 4 and 5: Sexuality, socialisation and myths - creates awareness of appropriate sexual behaviour towards others, debunks myths about gender stereotypes
• Sessions 6 and 7: Victim empathy - identifies different feelings that people have, creates understanding of feelings of powerlessness and how this relates to situations of abuse, initiates process of preventing relapse into offending by making participants aware of possible feelings of their victim
• Sessions 8 and 9: Relapse prevention- explore anger triggers and responses to anger, looks at ways of responding to anger and conflict situations
• Session 10: The way forward: encourages communication between caregivers and the children and makes caregivers part of the children's future aspirations.

There is a definite need to focus on the offender to try and redress the power imbalance that more often than not causes violence to be perpetrated against women. It is also argued that interventions with young offenders are successful as these interventions occur during a time when the child's personality, attitudes and beliefs are still in their formative stages and can be altered where there are serious behavioural problems.

Who are young sex offenders? It is noted that there is a range of types of children who display sexually deviant behaviour. Friedrich explains:

It is therefore important not to simply generalise when speaking of young sex offenders, but to realise there are varying degrees and classes of offending of this nature.

Likewise, there are differing motives behind children who are sexually aggressive and Araji explores these as follows:

• Self control - children who are impulsive or compulsive or both
• Emotions expressed - sexually aggressive children demonstrate deep feelings of anger, rage, shame and loneliness
• Abuse histories - Sexually aggressive children may have been sexually abused but not necessarily. All have experienced some type of abuse - physical, sexual, or emotional - usually multiple types.
• Abuse-Victim relationships - sexually aggressive children seek out others who are perceived as less powerful, unequal in status and who can be controlled
• Environments - the majority of sexually aggressive children live in dysfunctional-type homes or environments that include families that lack boundaries, especially in the area of sexual activities
• Treatment outcomes - of all children demonstrating problematic sexual behaviours, children who act sexually aggressive are the most resistant to treatment

It is therefore evident that interventions are paramount in the management of these types of offenders.

As far as the effectiveness of managing serious juvenile offenders is concerned it has been said that a purely punitive approach discounts advances made in the area of treatment. According to Lipsey, " it is no longer constructive for researchers, practitioners, and policy makers to argue about whether delinquency treatment and rehabilitative approaches work. As a generality, treatment clearly works. We must get on with the business of developing and identifying the treatment models that will be most effective and providing them to the juveniles that will benefit"

In relation to serious and violent juvenile offenders, the Office of Juvenile Justice and Delinquency Prevention's Study Group on Serious and Violent Juvenile Offenders has reached certain conclusions and key findings in expanding its knowledge about such offenders and determining which types of interventions can reduce their level of offending. These include:

• It is never too early: Preventative interventions for young children at risk for serious and violent juveniles should be implemented at an early stage and are known to be effective
• It is never too late: Interventions and sanctions for known serious and violent juveniles can reduce the risk of re-offending
• Among the strongest predictors of serious and violent juveniles evident between the ages of 12 and 14 are lack of strong social ties, anti-social peers, non-serious delinquent acts, poor school attitude and performance and psychological conditions such as impulsivity
• The best preventative interventions are based on an integration of different services, including services provided by the juvenile justice system, schools, mental health, medical health and child protection agencies
• The re-offending of serious and violent juveniles can be reduced by appropriate intervention, especially interpersonal skills training and cognitive-behavioural treatment
• Better designed evaluations of the effectiveness of programs are needed and studies of the cost-effectiveness of one programme compared with others

SAYStOP is a programme for young sex offenders. The focus is on the offender and not the victim. As such, the young offenders participating in the programme, thus far almost exclusively males, have not necessarily only committed a sexual offence against a women or girl child, but can have offended against a member of their own sex. However, it is generally recognised that most instances of sexual assault are committed against women or girls.

Pickup argues that gender analysis of human development indicates that one of the main causes of violence against women lies in the unequal powers relationship between women and men that entrenches male dominance over women. She looks at a number of strategies to combat and challenge violence against women including direct support to survivors of violence, challenging attitudes and beliefs and challenging the State's responses to violence against women.

One of her strategies is challenging violent men. She notes, however, that mainstream development and humanitarian organisations have not tended to work with men and resist this idea for a number of reasons. These include the fact that there are limited resources available for violence against women and these should not be used on the perpetrators but rather the survivors. Likewise, women activists and gender and development policy-makers are reluctant to dilute the political power of their focus on women.

The reason given for developing strategies to engage male perpetrators is that most forms of violence against women will not end until men change. It is argued that by directly challenging the behaviour of violent men, and ensuring that men and boys are encouraged to reject violence, the goal of achieving safety for women can be reached.

It is submitted that a separate child 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. 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.

SAYStOP is particularly encouraged by the inclusion of provisions for assessment and diversion. These are 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 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. SAYStOP supports the inclusion of diversion in the Bill.

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 provide for time periods in which certain procedures 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. SAYStOP supports these sections.

We agree with and support the following provisions contained in the present Bill and submit that they should be included in the final legislation. However, this does not mean that we are not in agreement with most other provisions in the Bill, we merely wish to highlight those of particular relevance and importance to young sex offenders.

• Chapter 1 - objects of Act and general principles.
• Chapter 4 - assessment of child. However it submitted that section 38 of the Cabinet's version of the Bill on purposes of assessment, which has been excluded from the present Bill, should be included in order for the Bill and assessment to have greater clarity and put the provisions of the chapter in context for probation officers and social workers. These provisions serve as useful general principles and guidelines for assessment.
• Section 38 - postponement of preliminary inquiry for detailed assessment.
• Chapter 6 - diversion. We specifically support the move not to exclude certain categories of crimes for the purposes of diversion. It is evident from the discussion above that there are various types of young sex offenders and the motives for committing these types of offences differ drastically. It would therefore be counterproductive to focus on the general nature of the offence and not the offender and specific details of the crime by excluding certain offences from diversion. The approach taken of assessing each matter as it occurs, it is submitted, is the correct one.
• Section 62 - pre sentence reports required.
• Section 64 - community-based sentences.
• Section 65 - restorative justice sentences.
• Section 70 - postponement or suspension. However it is submitted that section 93(3)(j) of the Cabinet's version be included in the present section, which reads:

There are certain provisions that we submit are problematic for one reason or another. These are as follows:

It is submitted that this does not make sense in that a primary caregiver necessarily is a factual custodian and is, in most instances, also a member of the child's family.

It is submitted that it is confusing to define diversion as " diversion of a child". It is submitted that it would be best to define it as "referral of a child". In addition, the terminology " to the informal procedures established by Chapter 5" is also confusing as this refers to the preliminary inquiry. Perhaps it would be best to state, " to the informal options established in chapter 6 by means of the procedures established in chapter 5".

In the Cabinet's version of the 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

• Section 8 of the Cabinet's version deals with the age estimation by a probation officer and this has been relocated to section 24 of the present Bill under the chapter of assessment. Again, it is noted that age estimation is one of the purposes of assessment, but it is submitted that logic demands that all issues relating to age estimation and determination should be located in one area in the Bill so that this process is clear.
• Section 9 of the Cabinet's version dealing with the age determination by the inquiry magistrate is relocated to sections 31 and 82 of the present Bill under the chapters dealing with the preliminary inquiry and general provisions. Again, as stated, it is submitted that it would be more appropriate that these provisions be grouped together in one area in the Bill for consistency.

The original SALC draft Bill had extensive provisions regulating the monitoring of the Bill. These are now relegated to the regulations. It is submitted 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.

Appendix 3:
Ms S Padayachee
LAWYERS FOR HUMAN RIGHTS
With South Africa having ratified the CRC and the AC on the Rights and Welfare of the child it is the country's obligation to bring legislation in line with international Standards. Section 28 (1) (g) of the South African Constitution states that : " a child should be detained as a measure of last resort and for the shortest possible period of time ".

The Child Justice Bill provides for a criminal justice system that would be specific to the needs of children who are in conflict with the law. The bill looks at reinforcing the child's respect for human rights whilst taking into account the fundamental freedom of others by holding him or her accountable thus also safeguarding the interests of victims and the community.

This stage sets out the child's entry into the justice system. The inquiry Magistrate role is ascertaining the circumstances and seriousness of the matter. I am of the opinion that the inquiry May should participate in the stage, as they take into account the best interests of the child.