Custody of Children: Departmental and independent body briefings

Correctional Services

10 June 2008
Chairperson: Mr D Bloem (ANC)
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Meeting Summary

Three Departments, the Legal Aid Board and the Centre for the Study of Violence and Reconciliation, presented information on their roles around children in the criminal justice system. The Centre for the Study of Violence and Reconcilation presented a survey done in a medium security correctional centre for male youth. Concerns were expressed over the number of inmates over 21 years, who had possibly lied about their ages, housed with children. Centre administration had complained that despite orders that young offenders must be sent to trade schools they ended up being sent to correctional centres. Department of Correctional Services (DCS) programmes and services did not cater for unsentenced children. Many children had high levels of exposure to the criminal justice system. A number of recommendations were presented.   

The Department of Correctional Services gave detailed statistics on the average trends and numbers of children in conflict with law, gave the average numbers of awaiting trial children as around 1000, detailed the numbers of sentenced and un-sentenced children in detention by DCS, and the sentenced and unsentenced children in juvenile centres. The programmes for the sentenced children were ongoing but those for unsentenced children were the responsibility of Department of Social Development and were not in place. 87% of remanded children were placed in DCS facilities without bail.

The Department of Social Development described the ways in which children in conflict with the law were now being managed, and how this would change when the Child Justice Bill was promulgated. Secure care facilities were not being properly utilised. There was non-compliance with the Interim National Protocol for the Management of Children Awaiting Trial. The level of social work support and the diversion programmes were listed and explained.

The Department of Justice described its efforts to sensitise magistrates, the diversion programmes, and prioritisation of children’s cases. It tabled the reasons for children awaiting trial in correctional facilities, numbers of children sentenced to parole and community corrections, and current initiatives.  Children sentenced to direct imprisonment had decreased by 40% during the past five years, whereas those sentenced to parole and community corrections had increased.  Challenges included the cautious application of the concepts of restorative justice.

The Legal Aid Board set out its role in relation to children, noting that the normal qualifying parameters did not apply to children’s cases.  Children’s Units had been established at Justice Centres, linked to the established and proposed One-Stop Child Justice Centres. Legal representation for children had improved access. The methods of defence, the training and development of staff and statistics were provided. Challenges included the delay in the roll out of the one-stop Child Justice Centres, and the reluctance of some children to apply for legal representation. There was no early notification system to inform the LAB as soon as children were taken into custody.

The Committee was concerned with the lack of proper use of facilities provided by the Department of Social Development. Although the Child Justice Bill was important and supported by the members of the Committee, they were interested in what was presently being done to remove children from correctional centres. The Department of Social Development and Correctional Services indicated a willingness to enter into a service level agreement to work jointly. It was also noted that although there were several departments working with issues related to children, they rarely work together and did not have specific inter-departmental children specific units that was jointly budgeted.

Meeting report

Opening Remarks
The Chairperson noted that this meeting would focus on the custody of children under eighteen. He insisted that prisons were not built and were never intended for the incarceration of children. Serious blame and strain was placed on the Department of Correctional Services (DCS), which was not fair. Children were frequently being imprisoned under warrants issued by the South African Police Service (SAPS) despite the fact that there were alternatives in reform schools and secure care facilities.

Conditions experienced by children detained in correctional centres of the DCS: Results of survey conducted by Centre for the Study of Violence and Reconciliation (CSVR) presentation
Ms Sasha Gear, Researcher, CSVR, presented a survey done in one of the Gauteng correctional centres for male youth. It was a small, medium security centre with a population of between 438 and 462. There was a portion of the inmates that were over 21 years of age, and this had been a surprise for management as those inmates were supposed to be housed in the adult section. It was indicated that it was not uncommon for inmates to lie about their ages, as this might mean a more lenient sentence and incarceration not in an adult prison. However, this meant that other inmates in the Centre, including children under 18, could be placed at additional risk. The centre administration had complained that even if a magistrate stipulated that the young offender must be placed in an industrial school, he or she ended up being sent to correctional centres on the grounds that there were no available places at the school.

The study had further found that children awaiting trial in correctional centres were placed in the awaiting trial section of the adult prison, where children were separated from other inmates. Even though DCS had programmes and services for sentenced prisoners, these did not pay adequate attention to the needs and development of un-sentenced children.

The study also found that there was high exposure of children and youths to institutions of the criminal justice system. Of the respondents to the survey, 80% had no prior convictions whereas 68% had previously spent time in a prison, police cell or other type of secure facility. The young peoples’ levels of fear and exposure to violence were generally high. The survey found severe shortcomings on measures to address assaults, even when they were reported.

Ms Gear concluded that government should continue to intensify its efforts to remove children from prisons, particularly from awaiting trial sections. She also provided a number of recommendations around where children were held in correctional facilities, the fact that they should always be separated from adults, the fact that all children should be carefully assessed and selected before being allocated to shared accommodation, and that there must be ongoing monitoring of children.

Children in Conflict with the Law: Department of Correctional Services (DCS) Briefing
Mr Willie Damaus, Chief Director: Remand and Security: DCS, highlighted issues pertaining to children in conflict with the law. An overview of the average trends and numbers of children in conflict with law was summarised, with extensive statistics being presented (see attached presentation). He indicated that around 1 000 children per month between the ages of 14 and 17 years old awaited trial for serious and violent crimes, in correctional facilities. Statistics of the annual number of sentenced and un-sentenced children detained in DCS facilities for the past five years were given. The total number of sentenced children in custody by year was given. The correctional centres with the highest number of sentenced children below the age of eighteen years were set out for each region. The total number of awaiting trial children in custody was also given. Statistics were given of sentenced children versus awaiting trial children as well as in juvenile centres in each region.

Programmes arranged for the sentenced children were set out. It was noted that the programmes for the awaiting-trial children were the responsibility of Department of Social Development (DSD). There were also programmes that were developed in response to specific crime categories. IT was noted that the competencies of custodial staff that were dealing with children were not specific enough. The current developments to improve management of children were provided. The challenges for the system included that 87% of remanded children were placed in DCS facilities without bail.

Children in Conflict with the law: Department of Social Development (DSD) Briefing
Ms Conny Nxumalo, Chief Director: Families and Social Development: DSD, gave an introduction that focussed on the Child Justice Bill (CJB) and the important changes to the manner in which children in conflict with the law were being managed and dealt with within the criminal justice system. The supporting legislation that was the basis for the legislative mandates of the DSD was listed. She noted that measures were put in place to ensure that the contact of child offenders with the criminal justice system was limited. The secure care facility capacity was listed, as well as an indication of the number of personnel per province (see attached presentation), and the numbers and locations of such secure care facilities.

Ms Nxumalo explained that the secure care facilities were not properly utilised. The challenges experienced by DSD in accommodating children in DSD facilities, rather than DCS facilities, included non-compliance with the Interim National Protocol for the Management of Children Awaiting Trial. The level of social work support and the diversion programmes were listed and explained. Ms Nxumalo concluded that the Department did acknowledge the intersectoral collaboration but that it was vital that all role players should assume their responsibilities properly.

Prioritisation of Children in Conflict with the law and custody of children under the age of 18: Department of Justice and Constitutional Development (DoJ) Briefing
Ms Shireen Said, Chief Director: Promotion of the rights of vulnerable individuals, DoJ, stipulated what the Portfolio Committee had requested the Department to cover. She noted that the sensitisation of the magistrates started by including courses on restorative justice as part of the DoJ curriculum for training of magistrates. Diversion, an option in which children were to be involved in specific programmes, was now dealt with in better detail than before and was promoted through the National Prosecuting Authority (NPA). Prioritisation of children’s cases, and a time frame for their finalisation, was agreed upon and implemented.

Ms Said tabled some of the reasons for children awaiting trial in correctional facilities. She also tabled statistics around sentenced children. She noted that the number of children sentenced to direct imprisonment had decreased by 40% during the past five years. The number of children sentenced to parole and community corrections had increased during the past few years. Present initiatives included the application of the Interim National Protocol for the Management of Children Awaiting Trial. The Portfolio Committee on Justice and Constitutional Development was presently deliberating upon the Child Justice Bill. The monitoring structures included the Inter-Sectoral Committee on Child Justice (ISCCJ) as well as several sub-committees. Current legislation included the Criminal Procedure Act and the Child Justice Bill.

The challenges included the fact that restorative justice was still a novel concept and was applied cautiously by officials. Ms Said noted that the promotion of this principle would lead to a larger number of children being managed either through diversion or non-custodial sanctions.

Children in conflict with the law: Legal Aid Board (LAB) Briefing
Mr Brian Nair, National Operations Executive: Legal Aid Board, set out the vision, mission and values of the Legal Aid Board. He also indicated the mandate and the justice centres in each province, also giving an indication of the LAB staff in each province.

Mr Nair said that the normal qualifications for legal aid did not apply in the case of children. The LAB focus on children centred on the realisation that children represented the most vulnerable of all groups. The LAB had established Children’s Units at Justice Centres, linked to the established and proposed One-Stop Child Justice Centres. The location of the Children’s Units was tabled.

Mr Nair noted that the LAB legal representation for children had improved access. The Justice Centres were required to monitor children in custody who were awaiting trial. He then set out the strategy for the LAB defence representation of children, and the details of the training and development of LAB staff to deal with children’s matters. The stakeholder networking was recognised. The statistics for the total new legal matters per delivery system were provided, as well as the legal aid granted to children in criminal matters for 2007/2008. The top ten charges for children in criminal matters were given (see attached presentation for all details).

Mr Nair noted that the challenges that the LAB faced when representing children included the effect of the delay in the roll out of the one-stop Child Justice Centres, as well as the indication that some children were reluctant to apply for legal representation as this was perceived as an admission of guilt. There was also no early notification system to inform the LAB as soon as children were taken into custody.

Discussion
Mr J Selfe (DA) mentioned the reference made to the reform schools and asked for more clarification as well as locations of the schools.

Ms Said replied that there were three in the Western Cape and one in Mpumalanga.

Mr Selfe asked why there were children in prison if there were beds in secure care facilities.

Ms Said replied that it was unfortunate that the Department of Education (DoE) was not present at the meeting, as they formed part of the criminal justice system through the reform schools. The new Child Justice Bill changed the definition of juvenile centres to Child and Youth Care Centres that possibly included residential programmes. There was a transitional provision that stipulated that the DoE remained responsible for the education portion, yet the housing itself would be the competency of the DSD. The location of the centres provided a geographical challenge. There were three functional centres that were being renovated in the country. There should be greater consideration given, when these centres were being built, as to whether they were intended to institutionalise or provide programmes. There would be some children who would have to be institutionalised, but programmes should be considered. There were a few facilities and the DoE and DSD were in discussion on how the facilities would be filled. 

Ms Nxumalo added that DSD was working with the DoE in terms of handover, but that the DSD was only going to take over the reform schools. The DSD needed to identify one facility in each province to accommodate sentenced children under the age of fourteen years. The Child Justice Bill also proposed that each of the facilities should be registered so that there would be an assurance that the facilities offered the required programmes. The proposed regulations in support of the Child Justice Act were about to published for public comment. It was also proposed that children who were sentenced, and those awaiting trial, should be accommodated in one facility if the facility had the relevant programmes as well as security. 

Mr Damaus added that within DCS there were around 1000 awaiting trial detainees. There was a process of re-assessment, after which the officers from DSD took the application back to court for the magistrates to make a decision. DSD raised the issue that magistrates did not honour the recommendation from the probation offices. A further problem was that the police did not always immediately report when they had arrested a child. The Child Justice Bill had also debated the issue of the age group of children. Presently the DSC did not incarcerate children up to the age of thirteen. He added that different departments had different budgets and there was no joint budgeting around children issues, which was also a serious matter. There was no dedicated unit that managed specific children issues.

Mr Selfe mentioned that although he agreed with the Child Justice Bill, there were some seriously maladjusted children and he wanted to be assured that there would be places set aside for those children, as well as places for those that could be rehabilitated.

Ms Nxumalo replied that there needed to be further clarity on the use of places of safety. Children who were going through the Children’s Court Enquiry procedure were usually housed at the places of safety. Some places of safety were used when there were no beds available at reformatory schools. The functionality of that specific facility could be checked. Places of safety were originally used for children, for a period of six months, while DSD would be utilising other services. It was realised that those facilities were not fully utilised. 

The Chairperson wanted to know who had created the problem that there were facilities within the DSD that were not fully utilised.

Ms Said replied that each of the Departments approached the issues with their own departmental prescripts. The challenge was how to manage processes systemically. The departments involved should programme and budget jointly, as if they did not do so there would always be cross-departmental issues. The DCS had approached the DoJ to ask what their contribution to their budget vote was.

Mr Selfe was in favour of the provisions contained in the Child Justice Bill and felt that these would go a long way toward solving all the systemic problems. However, there was a tendency in Parliament to simply pass a Bill and assume that the problem was solved. He would like assurance of the practicality of all the provisions contained in the Bill.

Ms Said replied that the DoJ had requested that they be given the opportunity to put certain measures in place before the legislation came into effect. It had proposed that the Bill must be brought into effect by way of staggered implementation, so that, for instance, some provisions that did not require certain types of support could be implemented, whereas other provisions requiring the building of centres stand over to allow for that to be done. A monitoring and evaluation framework that required the DoJ to come to Parliament and review the policies was proposed, rather than wait for an amendment to the legislation. As soon as the final part of the Bill was completed the DoJ would do the costing of the Bill. This Bill must be seen as transformation of a system. An incremental approach would be put in place. Training and information management systems had already been put in place. 

Mr Selfe noted a recommendation in the CSVR that suggested education and development opportunities. When the Committee went on an oversight visit to the female section in Pollsmoor prison on a weekday morning their young girls were not participating in educational programmes. These girls had informed the Committee that the educational services were sporadic.

Mr Selfe was interested in the statement that there were no recidivist children that had attended diversion programmes. He asked what were the statistics in relation to children diverted out of the criminal justice system and placed on a diversion programme who would re-offend thereafter.

Mr S Mahote (ANC) was also interested to hear the rate of recidivism in sentenced children.

Ms Said replied that for children that committed sexual offences, programmes to deal with the offending behaviour had certainly lessened the rate of recidivism. Those particular study was both local and international. Those studies were conducted by non government organisations (NGOs) as the State had not commissioned any formal research. This was something that the ISCCJ was looking at. The DoJ did not have the type of statistics to empirically inform the Committee of the rate of the success of diversion programmes. However, the experience gained from engaging with the NGOs and other stakeholders would indicate that the diversion programmes seemed successful, although from a scientific point of view they could not accurately tell the Committee whether they worked. 

Mr Mahote asked for comments from the DCS and clarification on the custodial staff training.

Mr Damaus replied that DCS officials were trained to deal offenders in general including the awaiting trial detainees. There was also the issue of capacity and scarcity. The DoE had said that they did not have teachers to send to the DCS for the education programme. The DCS had rather  opted to request assistance from DSD for the education programmes.

Mr Mahote noted that in a presentation it was noted that sometimes children would be mixed with adults, for instance when being transported to and from court. He asked how this happened.

Mr Damaus replied that in terms of the Correctional Services Act, children should not be mixed with adults at all. That was a non-compliance issue. DCS would normally investigate any such matters and make the appropriate recommendations.

Mr Mahote asked if there was a juvenile centre in Eastern Cape as all the other provinces was listed.

Mr Damaus replied that there was a large group of children in Port Elizabeth and Cradock, in different units, but that there were no declared juvenile facilities in the Eastern Cape. The two centres that were mentioned also incarcerated the biggest group within the Eastern Cape.

Mr Mahote asked if the DSD had programmes for the children that were awaiting trial.

Ms Nxumalo replied that DSD were not providing any service for children awaiting trial. They were awaiting approval for the Director-Generals from DSD and DCS to implement programmes in five prisons for children who were awaiting trial. If these worked they would be rolled out to other prisons. The DSD had a personnel shortage and would appoint an NGO to conduct the programmes. The structure of the programme was a challenge, because it was not known how long the child would be awaiting trial, and so the programmes would be along the lines of life-skills as opposed to formal education.

Commissioner Vernon Petersen, National Commissioner, DCS, added that he hoped the Committee would address this issue. Presently the DSD, in theory, provided the programmes. Clearly the various demands on the DSD restricted them and it was an area that was fairly neglected, with a lack of programmes for awaiting trial detainees. He suggested that perhaps the DSD and the DCS should enter into a service level agreement. Someone had to take responsibility. There had to be a standard of decency.

Ms Nxumalo responded that the service level agreement was acceptable, as for the DSD to render a service in another department facility could be challenging.

The Chairperson asked for a definition of robbery.

Ms Said explained that
robbery was an offence involved theft by using force. She further explained that the prosecuting officer was responsible for determining and assessing a child’s conduct to deem if it was in fact robbery.

Mr Damaus replied that when any awaiting trial offender was admitted there was no description on the warrant. Perhaps there was a need to be more descriptive.

Mr Mahote asked about the offences of the respondents in the study conducted by the CSVR. He asked this question because at Pollsmoor the Committee had encountered a girl who had stolen school shoes.

Ms Gear replied that the facility where CSVR conducted the research was a medium facility. 42% of inmates were serving time for aggressive offences of robbery, bank robbery, hijacking or cash-in-transits heists, 34% were serving for convictions of burglary or attempted burglary, 20% for theft or shoplifting, 6% for crimes of murder or attempted murder, and 5% for sexual crimes. These were medium sentences, with the average sentence length being four years and six months.

Mr M Cele (ANC) asked which structure provided assistant probation officers and who monitored them.

Ms Nxumalo replied that they were recruited through advertisements placed in newspapers. DSD involved the Umsombomvu Youth Fund and DCS to assist with the funding. 

The Chairperson asked for an explanation of mindset. He asked why the magistrates, DoJ, and perhaps LAB, were continuing to contribute to the numbers of children sitting in prison. Policy was crucial and had to be utilised.

Ms Said thought that perhaps this reflected the challenges of transformation in the country. The Promotion of Equality and Prevention of Unfair Discrimination Act dealt with equality, and yet, despite the fact that discrimination was still widespread, the Equality Courts were the least used of all courts. This indicated the challenge of changing the mindset. The remedy seemed to be to come up with directives to Departments to put in place training programmes, such as social context programmes. One of the challenges around child development issues and sexual offences committed by children was that they tended to spiral up into other offences. The deep-seated effects of apartheid could not be ignored. The society at large had to be more vigilant. Discrimination had become normalised and departments could only deal with issues as they came along. There was not yet a sufficiently participatory democracy. The new Child Justice Bill would put in place the United Nations systems. These had a different and more advanced curriculum, with technical support, especially with centres that helped not just with child development but which would deal with a whole range of human rights training. This would begin to internalise some of the principles of the Constitution.

Commissioner Petersen added that there needed to be distinctions made when dealing with children in conflict with the law, and children awaiting trial. He had some concerns around the incremental implementation of the Child Justice Bill and children who were in conflict with the law, as there was no framework. A central department that was dedicated to enforcing that course of action should drive the framework. DSD, if it were to continue to play its vital role, had to look at how to enforce national norms and standards. Remand detention also must be scrutinised. He hoped that under the leadership of DCS they could begin to build the remand detention system. All departments needed to engage on what the various other departments were contributing.   

Mr Nair thought that the perception of the LAB should be re-assessed. There was a major change in terms of the operational structure. Over the past six years the organisation had moved from a primarily an outsourced to an in-house organisation. Almost 90% of the services were delivered in-house. The LAB was encouraged by the fact that reviews of performance clearly showed that enormous progress had been made.  LAB was one of the few organisations that could report consecutive clean audits for the past six years. There was a continued growth rate. LAB monitored the complaints received and realised that these were minimal, and when followed up showed that in fact there was another side to the story. Most of the LAB employees had been employed for less than five years; and the people recruited had to have a passion for justice and understand the role they played in the criminal justice system. LAB had an extensive criminal justice programme to instil such culture. LAB had been assured that they had enough systems in place to monitor the quality of the service delivered. It should be noted that the LAB might have represented many of the inmates in the correctional facilities that the Committee had visited. Whilst all obviously wanted to be acquitted, and often blamed their lawyers when they were found guilty, it was not the role of the LAB to achieve acquittals. It was rather to ensure that offenders were given a fair trial.

Mr Mahote mentioned that the remarks the Committee was getting were often not based on loose perceptions, but rather on a conscious decision that many of the inmates preferred to be self-represented, rather than be defended by lawyers from the LAB.

Ms Cordelia Robinson, Regional Operations Executive: Legal Aid Board, replied that in 2006 the LAB attended an oversight visit with the Committee to Pollsmoor. They had visited three groups; one group being children under the age of fourteen, then children between the ages of 14 and 18, then youths between 18 and 21. It was discovered that there was legal representation and that they were aware of the LAB. The NPA, the Magistrate, SAPS, the Inspecting Judge of Prisons, and DoE were not present at the meeting, yet were all role players. All the role players were at provincial meetings. The DCS in Cape Town sent a list of all children currently in custody to the LAB every Tuesday. She further asked that the LAB be invited on the next oversight visit, so that they could directly investigate the allegations made against the LAB.

The Chairperson responded that the Committee had visited Pollsmoor, Grootvlei and Kroonstad, In Kroonstad he had called one of the LAB members there. He interacted with the children at the prison and asked who their representatives were, and none was aware of who their lawyers were.

Mr Mahote commented that he was not sure if he should continue with his questions, as most of the answers to the previous questions were based on what would happen once the Child Justice Bill came into effect.

Mr Mahote asked which police stations the DSD visited. He served on the Portfolio Committee on Safety and Security Committee and noted that this Committee had a questionnaire that was given to the police stations, which asked who had visited the police stations. None of them had stipulated that the DSD had visited.

Ms Nxumalo replied that she was sure that DSD’s assisting probation officers were visiting police cells daily. They reported back on the number of children found in police stations that were not referred for assessment in the DSD.
She apologised for the lack of monitoring over the facility mentioned by Mr Mahote, and assured him that it was a rare case that a prison was visited so infrequently. She expressed thanks to Commissioner Petersen for his proposals to improve conditions, but noted that the securing of changes was not necessarily under the control of the DSD.

The Chairperson commented that everyone was taking issues around children in prison very seriously. There was a resolution by the ANC that children should not be in prison. He did not accept statements or comments that it would be a process to change the mindsets of magistrates, because no child should suffer discrimination through another’s mindset. Everyone in the justice system needed to leave aside the past, and address the issues now. A continuation of past mindsets would damage the future of the country, and, unless they were careful, would create a society of criminals. He could not understand why a child of fourteen could not get bail for stealing chocolates, yet an adult committing a far more serious offence could receive bail. He questioned why children committing crimes were not prioritised, and stressed that both the police and DoJ must prioritise all cases involving children. 

The meeting was adjourned.

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