Submission by the Centre for the Study of Violence and Reconciliation and Childline SA.

Written by Carnita Ernest and Joan van Niekerk

The Children's Bill and Sexual Offences Bill were developed by the SA Law Reform Commission. The Project Committees working on these two critical pieces of draft legislation recognised potential areas of overlap in relation to the care and protection of children, and therefore regularly consulted on the development of draft provisions in order to prevent such overlap.

Both the Children's Bill and the Criminal Law (Sexual Offences) Amendment Bill have undergone considerable redrafting processes. Presently the Children's Bill (Sections 118 to 128) and the Criminal Law (Sexual Offences) Amendment Bill (Sections 25 - 33) provide for some form of register that captures the names and details of persons who have committed offences against children. However the Criminal Law (Sexual Offences Bill provisions only relate to those who have committed sexual offences, whereas the Children's Bill has far broader application.

It must be noted that research into the effectiveness of offender registers generally indicates that offender registers do not contribute much to Child Protection generally and have become known internationally as "feel good" provisions.' However the register envisaged in the Children's Bill is one specifically designed to limit access to children by offenders in care and workplace situations.

The following comments and suggestions relate to the proposed Provisions in the Children's Bill with some reference to the proposals in the Criminal Law (Sexual Offences) Amendment Bill:

1. Neither set of provisions relating to the register are adequate. However the register of persons unfit to work with children provided for in the Children's Bill has broader application and therefore should be expanded to include some of the provisions of the Sex Offender Register in order to provide the best overall protection for children rather than the Sexual Offences Bill establishing yet another separate offender register. This was the original and decision of the SA Law Reform Commission Project Committees on the reform of the Child Care Act and the Sexual Offences Legislation, who made an effort to work together on common issues in order to avoid duplication of provisions without compromising comprehensive care and protection of children.

2. It is essential to recognise that it is not only sexual offenders who may be unfit to work with children - physical and emotional assaults on children may be as damaging as sexual assaults and it therefore is necessary that persons other than sexual offenders who commit offences and various forms of abuse on children be included on a register. The Register of Persons Unfit to Work with Children in the Children's Bill is therefore a far more appropriate provision than the register proposed in the Criminal Law (Sexual Offences) Amendment Bill.

3. Furthermore it is important to bear in mind that the SAPS already maintains a register of all convicted persons for all crimes and that rather than establishing another register - which is costly and therefore wasteful of resources, legislators should explore the possibility of expanding the purpose and function of this register in order to fulfil the purposed envisaged in the Criminal Law (Sexual Offences:) Amendment Bill, but not the broader purpose envisaged in the Children's Bill.

Only registering sexual offenders is very limiting especially in a climate in which plea bargaining is being encouraged - sometimes quite appropriately so, even in the instance of a sexual offence. This means that some sexual offenders may, for example, in the instance of a child being too traumatised/unable to testily for any other reason in court, be offered the opportunity to plead guilty to a charge that may not reflect on an exclusively sexual offenders' register in order to protect a vulnerable child from giving evidence in court and yet bring the offender into the Correctional Services System.

4. In both sets of provisions there is a problem in that whilst a person is awaiting the outcome of an appeal or review their name does not appear on the register. There should be a process for temporary registration pending the outcome of an appeal/review. These processes take a long period of time during which offenders may have considerable access to children. It is absolutely unacceptable that a person who has been convicted of a criminal offence against a child, which happens in such a tiny percentage of cases, gets to stay off the register, perhaps for years, while an appeal process goes on and possibly results in his/her getting off on some outrageous technicality.

This makes absolutely no sense if we bear in mind that a finding "beyond reasonable doubt" is not required for inclusion in this register - the "balance of probabilities" applies - and the convicted person has already been subjected to the stronger test. Also, the only disadvantage suffered by this person is that of having to refrain from applying for jobs/ voluntary service involving access to children, and noone is allowed to divulge the fact of his/her inclusion in the register for any other purpose. This is a clear case of the principle of the best interests of the child having fallen off the radar. There should at very least be a category of provisional registration for people awaiting appeal - the benefit of the doubt must in the meanwhile go in favour of children who stand to be harmed.

5. The above sets of provisions do not take into account offenders - usually child offenders but sometimes adults who accept a diversion agreement/contract as an alternative to a trial process. It is essential that these offenders are also included on a register. The Children's Bill register could be more easily accommodated to allow for this.

6. It is also essential to have some provisions/regulations that deal with children who have committed offences against other children, with a process for ensuring that names are removed once the child has been assessed and if necessary, successfully completed a period of rehabilitation and offence-free behaviour. One would not like to see children labelled in mid-latency or early adolescence as offenders but one does need to ensure that the special needs of children who develop aggressive behaviours are dealt with and tracked in a child-centred way.

7. With regard to Section 123 of the Children's Bill and Section 30 of the Criminal Law (Sexual Offences) Amendment Bill, neither proposed register includes persons who through their auxillary work with children have access to information about children through computer records etc. Prohibiting direct access to children is not sufficient. One has to also protect children where an offender has indirect access to information about children. An example might be of a computer hard or software technician who sets up or services in any way the computer hard and software of an organisation working with children.

This gives an enormous amount of information on children receiving services to such a person. For example Childline has confidential reports on children for court and other processes on its computers. These reports contain identifying information of children, detailed accounts of their history and of their abuse. Some potential offenders might actively seek this information out as sometimes vulnerable children with a history of abuse and neglect are more susceptible to being sexually exploited.

8. Of particular concern are the processes in both sets of proposed legislation with regard to the removal of a persons name from the register:

• In the Criminal Law (Sexual Offences) Bill the process of consulting with a professional on this issue is discretionary on the part of a judge in chambers; this form of consultation should be integrated into provisions of the Children's Bill in which consultation with an expert is not mentioned.

• In the Criminal Law (Sexual Offences) Amendment Bill there is a very limited pool of professionals from whom a report may be requested by a Judge or magistrate. It is essential that if such a consultation clause were inserted into the Children's Bill the pool of possible experts be expanded to include social workers and possibly other professionals such as probation officers who have expertise in this area and who provide the bulk of Offender Rehabilitation and behaviour management training services in South Africa.

• The fact that one may be a registered and practising psychiatrist or psychologist does not mean that one has the necessary expertise to make this kind of assessment. It is therefore essential that the provision state clearly that any expert consulted has the necessary training and experience in the assessment and management of sexual offenders.

• It is also recommended that if the Offender has participated in a rehabilitation/behaviour management programme, the professionals involved in the implementation of this programme be consulted, as well as an external assessor.

• Section 128 (4) provides that the name and particulars of a person convicted of an offence with regards to any child more than once. . may not be removed from the register. It is suggested that this should be extended to read "convicted of an offence with regards to any child more than once and/or more than one child may not be removed from the register. Actuarial studies into offender re-offence risk indicate that the presence of multiple victims is indicative of higher risk than multiple acts with a single child.

9. It is recommended that known aliases used by the offender be added to the contents of the information on the Part B register - this is especially important for children who rarely know the full and correct name of the offender where the offender is someone outside of the family group.

10.5 28 (c ) of the Criminal Law (Sexual Offences) Amendment Bill provides for the court to explain the contents and implications of being on the register to the offender. There is no provision for notification and explanation in the Children's Bill - the implication is that a person's name could appear on this register without their knowledge. A similar clause should be inserted into the Children's Bill.

11. Section 126 (1) (c) and 126 (2) (c ) of the Children's Bill provides that persons whose names are on the register may not work in the Child Protection Unit of the South African Police Services. However it is essential to note that many cases of child abuse and neglect are managed at Police Service Station level. No police service personnel whose names are on the register should be allowed to investigate or manage reported cases of child abuse.

12. There is no requirement for employees of the Department of Social Development to be screened against the register. This is a grave and unacceptable omission when one considers this department's direct and indirect role in relation to service provisions to children and families.