WRITTEN SUBMISSIONS FROM THE CENTRE FOR CHILD LAW TO
THE PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT REGARDING THE
CHILD JUSTICE BILL B 49 OF 2002 (CABINET VERSION 2007)
The Centre for
Child Law hereby requests that Dr Ann Skelton be permitted the opportunity to
make oral submissions at the public hearings to be held by the portfolio
committee on 5 February 2008.
Contact details:
Dr Ann Skelton
Centre for Child
Law
Law Faculty
1. Introduction
The Centre for
Child Law is based at the
The author of these
submissions has had a long association with the Child Justice Bill. I chaired
the Committee at the South African Law Reform Commission that drafted the Bill,
and thereafter moved into the Department of Justice and Constitutional
Development to head the UN Child Justice Project, the purpose of which was to
assist government to prepare for the implementation of the Child Justice Bill.
The project oversaw the development of a budget and implementation strategy for
the Bill, the first time such a comprehensive costing and planning exercise was
undertaken in relation to a Bill (which has incidentally subsequently been
recorded as an international good practice example by Unicef). I was also a
member of the drafting team that assisted the portfolio committee when the Bill
previously served before parliament in 2003. I moved to the Centre for Child
Law in 2003.
It is important to
note that in the lead up to the introduction of the Child Justice Bill to
parliament in 2002, the government departments planned in a highly
inter-sectoral manner for the implementation of the Child Justice Bill, and
there was a remarkable amount of shared enthusiasm amongst the departmental
representatives who presented on the Bill upon its introduction to parliament.
The civil society organization representatives who made written and oral
submissions on the Bill were similarly enthusiastic, supporting that version of
the Bill (the 2002 version) and calling for only minor changes.
The portfolio
committee deliberated upon the Bill on and off during 2003. Almost every clause
of the Bill was changed, and as these submissions will demonstrate, some of the
changes made had far-reaching effects that altered the character of the Bill,
and that in some respects will take us backwards from where we are in current
law and practice.
The 2007 Cabinet version
of the Bill reflects changes directed by the portfolio committee but also
includes other changes not so directed, which presumably have been made by the
executive since the Bill was last debated in Parliament. Those committee
members who are still on the committee who were there when it was debated in
2003 will note that the 2007 Cabinet version of the Bill looks significantly
different from the Bill last seen by the Committee.
Of course, it was
expected that changes would be made by the portfolio committee, and not all the
changes made were negative. There were certain changes made that will enhance
the practical workings of the Bill and are an improvement on the 2002 Bill as
it was introduced. Three examples spring to mind. Firstly, the idea of the
prosecutorial diversion in certain minor offences. This will allow for a large
number of cases to be dealt with in a cost effective manner and in a manner
that benefits the children it applies to. This addition, made on the directions
of the portfolio committee in 2003, in fact accords with current practice on
the ground. A second example is shown in the changes that were made to the
provisions dealing with the expungement of criminal records. The changed
clauses are more protective and administratively less complicated than the
provisions of the 2002 Bill as introduced. Thirdly, the preamble to the Child
Justice Bill was added at the request of the portfolio committee. It provides a
wonderful contextual departure point for the Bill which is much appreciated.
On the down-side is
the complexity arising from the many changes. The 2002 version of the Bill read
easily and fluently. It was easy to understand, and this had been done
deliberately, with the recognition that it would not only be lawyers that would
have to work with the Act, but also police, probation officers, child care
workers and even children and their parents. Sadly the 2007 Cabinet version is
very difficult to follow. It abounds with lists of schedules and incoherent
cross references which cause one to flip backwards and forwards in the text.
This is an enormous concern for those practitioners (already struggling with
having to understand a plethora of new laws pertaining to children such as the
Children’s Act and the Sexual Offences law) who will now have to decipher this
law. The portfolio committee is implored to ensure that whatever content is
included in the final version of the Bill, that it is at least comprehensible
and easy to work with.
These submissions
will focus on three major changes that were made to the 2002 version of the
Bill. It will be argued that these three changes have a dramatic effect on the
envisaged system. A way of rectifying this will be proposed. It also argued
that correcting these problems will in and of itself simplify the Bill, as the
Bill will no longer be reliant on the many references to schedules which is
part of what makes the Bill so difficult to read and understand at present. The
three areas to be discussed in these submissions are (i) assessment, (ii)
preliminary inquiry, and (iii) diversion.
2. A comparison and evaluation of the systems of the
2002 version and the 2007 version of the Bill
2.1 The system as proposed by the 2002 version of the
Bill
The system as
proposed by the 2002 version of the Bill was as follows:
Step 1: A child
suspected of committing an offence could be warned to appear at a preliminary
inquiry by a police officer or be arrested.
Step 2: (to take
place within 48 hours) was that the child would be assessed by a probation
officer, who would then be in a position to make certain recommendations at the
preliminary inquiry regarding the age of the child, suitability for diversion,
and whether he or she could be released or detained, and if detained in what
kind of place.
Step 3: (to take
place within 48 hours) was the appearance of every child before of a preliminary
inquiry. This would take the place of the first appearance at court, so it did
not represent something entirely new, but what would happen there was quite
different from a first appearance in the following ways:
Step 4: if the
child acknowledged responsibility and the prosecutor agreed (on a consideration
of all factors) to the child being diverted, then the case could be diverted.
Step 5: If the
child said he/she was pleading not guilty then no further questions about the
offence would be asked and the preliminary inquiry would then focus on where
the child would be placed to await trial – either released into the care of
parents, detained in a placement facility or in certain serious offences (and
if the child was 14 years or older) in a prison.
2.2 The system as proposed by the 2007 cabinet version
of the Bill
Step 1: A child
suspected of committing an offence could be warned to appear at a preliminary
inquiry by a police officer or be arrested.
Step 2: Only
certain children will be assessed:
Step 3: Only
certain children will appear before the preliminary inquiry:
Step 4: Only
certain children can be diverted:
3. What are the implications of these changes to the
proposed system?
3.1 Assessment
It is already an accepted
goal of probation practice to provide an assessment of all child offenders
within 48 hours of the arrest, as provided for by the Probation Services Act
116 of 1991 (as amended by the Probation Services Amendment Act 35 of 2002).
The importance of assessment is to gather as much information about the child,
his or her family, the circumstances surrounding the offence, whether the child
has been in trouble before etc, in order to provide as much information as
possible to guide decision making. (Sometimes it will be necessary to undertake
a more in-depth assessment, and the Bill allows for this). The assessment will
guide decisions such as: Is the child a child in need of care? Is the child a
good candidate for diversion? Is the child able to managed by his or her
parents? Is it possible to release the child to the parents or does he/she pose
a risk to the community? Will the child respond well to a particular child and
youth care centre’s programme? Is prison – the last resort – necessary in the
case of this child?
It is thus
nonsensical to say, as the 2007 version of the Bill does, that children in need
of care may be assessed, because it is the very assessment process that will
determine whether the child is in need of care. The 2007 version of the Bill
ignores the fact that assessment is a necessary service that must be provided
in order to assist officials to make good decisions, and treats it instead as some
sort of benefit of which only certain children are deserving. Where a child is
charged with a serious offence (and the child is 14 years or older), the 2007
version of the Bill will not provide this service. This makes the unfortunate
assumption that the child is guilty of the offence with which he/she is charged
(and this before he/she has even appeared in court). More fundamentally, it
misses the point that even if the offence is serious and is obviously not going
to be diverted, the assessment is of crucial importance to determine where the
child will stay during the awaiting trial period. This is a service that
benefits not only the offender but also society.
The Centre for
Child law submits that ALL children must be assessed within 48 hours of the
arrest. This is subject to a clause (which appears in the Bill at clause 48(5))
that allows for the possibility that assessment can be dispensed with (provided
reasons are given) in cases where it is in the best interests of the child to
do so.
Other submissions
by members of the Child Justice Alliance propose that the practical problem
that there may be an insufficient number of probation officers (who are all
qualified social workers) can be dealt with by allowing for other qualified
persons to also undertake assessments. The Centre for Child Law concurs with
this view.
3.2 Preliminary inquiry
The idea of the
preliminary inquiry (a unique process) was premised on an unfortunate reality
of the courts that had been observed by many practitioners and researchers. The
problem was (and still is, because the law is as yet unchanged) that children
are arrested, held in police cells, appear in court but the parents are often
not there because the police have failed to notify them, they are remanded for
14 days in custody. If their parents come to court and the offence is not too
serious, they may be released. If not, they get swept up in a cycle of 14 day
remands, and often stay in custody for several months before someone decides
what should be done with them. Quite often the charges are ultimately withdrawn
or the children are acquitted. By then their lives have been damaged. Their
experiences in detention have hardened them, and they are now much more likely
to commit further crimes.
It was this
“conveyer belt” that the preliminary inquiry was designed to halt. The idea was
that the system would, very early on, put the brakes on the conveyer belt for a
moment, and pull the child off the production line for a thorough consideration
of what should be done. The assessment would help to provide the information
needed and the professionals at the preliminary inquiry would all carefully
consider the child’s specific circumstances and the various options available.
The preliminary
inquiry was not designed solely to facilitate diversion. That was certainly one
of its functions, but it was intended to do much more than that. It was meant
to make sure that an individualized response was used in each case, that
decisions were made on as much information as could possibly be obtained in
such a short time, that the child and the parent would be included and would
participate in the discussions. The preliminary inquiry was also aimed at
reducing pre-trial detention. As statistics provided by the CSPRI (page 5 of
the CSPRI submissions) indicate, although the number of children awaiting trial
has remained steady in recent years, the proportion of children awaiting trial
(as a percentage of all children in prison) is 59% whereas the proportion of
adults awaiting trial is only 25 % of the total number of adults in prison.
This is a remarkable figure. It demonstrates that presiding officers make more
carefully considered decisions at sentencing than they do regarding pre-trial
detention decisions. This is probably due to the fact that there is more time
for reflection, and that they have the pre-sentence report (compiled by a
probation officer) to point out the various options, indicate the risks and so
on. The preliminary inquiry in its 2002 version of the Bill form would go a long
way to providing the same conditions, and would thus be very likely to reduce
pre-trial detention in prisons.
The remnants of the
preliminary inquiry serve a much reduced purpose. The system as reflected in
the 2007 Cabinet version has lost its “conveyer-belt brake” for any children
other than those who have not already been diverted by the prosecutor, and the
remaining few who qualify in terms of the new restrictions placed on diversion.
One of the changes
made at the direction of the portfolio committee in 2003 was that offences
listed in schedule 1 (minor offences) could be diverted by a prosecutor without
the child appearing at a preliminary inquiry. As has already been noted, this
is a practical, time-saving and efficient suggestion, and if it is preceded by
an assessment, it will be safe to allow such prosecutor-diversions.
The Centre for
Child Law thus supports the inclusion of chapter 6 of the 2007 Cabinet version
of the Bill.
Subject to that one
exception, the Centre for Child Law proposes that every child shall appear
before a preliminary inquiry. It is important to note that the preliminary
inquiry takes the place of a first appearance in court, and involves the same
role-players who would usually be there (save for the probation officer, who
might not always be present- but there is a provision allowing it to proceed in
the absence of the probation officer if to do so would prevent delay and be in
the best interests of the child, see section 45(3)(b)). The Centre for Child
Law supports the submissions made by other partners of the Child Justice
Alliance that the group of workers who can undertake this kind of work be
extended beyond a probation officer to other practitioners who are suitably
qualified. These points are made to underscore the fact that it is not
difficult in practice to hold a preliminary inquiry. Thus if the limitations
placed on the role of the preliminary inquiry in the 2007 Cabinet version of
the Bill are resource driven, the members of the portfolio committee should be assured
that the preliminary inquiry is really just a unique and different way of
working at a first appearance, rather than a completely new process with
different role players.
3.3 Diversion
Diversion is, in
many ways, the core of the Child Justice Bill. The many benefits of diversion,
in terms of its linkages to crime prevention and better prospects of
reintegrating young people and keeping them away from lives of crime are now
well known, and are discussed in other submissions serving before this committee.
Of course, not all
cases are going to be diverted. Firstly, children have to acknowledge
responsibility for their offences to be considered for diversion. So those
pleading not guilty will not be diverted. Secondly, those who have committed
several offences and have been diverted before will be deemed at some point to
have “used up” their chances, and will not be diverted. Thirdly, there are some
offences which (when all the circumstances, the details of the offender, and
the seriousness of the crime have been considered) will be considered
inappropriate for diversion.
We are in the
fortunate position that diversion is currently practiced in
The 2002 version of
the Bill, in deference to the fact that the prosecutor is dominus litus
(meaning that he/she decides what cases to prosecute) allowed the practice of
diversion to continue to rely on prosecutorial discretion. Thus it was possible
for any case to be diverted, though it was always understood that certain cases
would not be diverted due to prosecutorial guidelines. This allows for
flexibility to deal with very unusual cases.
The Centre for
Child Law accepts that (as is now the case) there will always be a cohort of
cases that the prosecution will refuse to divert. Why, then, is it so important
to leave that as a matter of discretion and not limit the discretion via the
legislation as the 2007 Cabinet version aims to do?
One reason is that
children should have at least the same opportunities and benefits as adult
offenders. They definitely should not have less. The effect of limiting
diversion to certain offences via the Bill will result in children not being
able to be diverted in cases where there is no legal bar to adults being
diverted. This is unequal treatment that negatively affects children.
It would also place
children in a less advantageous situation than they are today. The prosecutors
have used their discretion, guided by the guidelines. There has been no outcry
about this. There have been no allegations that too many cases are diverted.
The Centre for
Child law submits that the prosecutor should decide on which cases to divert,
subject to prosecutorial guidelines.
4. Suggestions for redrafting
The following
changes are proposed:
Clause 11 Referral of matters
It is proposed that
clause 11 should fall away. If all children are to be assessed, all to go to a
preliminary inquiry (other than those diverted by a prosecutor in terms of
chapter 6) and all are eligible for diversion subject to guidelines then there
is no need for a complicated list relating to referral. No such clause appeared
in the 2002 version of the Bill. This has the added advantage of considerably
simplifying the Bill.
Clause 35 Duty of probation officer of other suitably
qualified person to assess the child
Clause 35 should be
replaced with the following wording:
Section 35 Every
child who is alleged to have committed an offence must be assessed by a
probation officer or other suitably qualified person before the child is
diverted by a prosecutor in terms of chapter 6 or appears at a preliminary
inquiry.
Clause 44 Nature and purpose of preliminary inquiry
Clause 44 should be
replaced with the following
44. (1) (a) A
preliminary inquiry must be held in respect of every child who is alleged to
have committed an offence and who has not been diverted pursuant to chapter 6
Clause 57 Diversion of certain sexual offences cases by
child below 14 years
To be deleted in
its entirety.
5. Guard against Bifurcation
The Centre for
Child Law wishes to reiterate that the system should not be bifurcated or
divided into streams that cut certain children off from services. Decisions
should not be made solely on the basis of the offence category with which the
child has been charged.
Another form of
bifurcation that has occurred in the 2007 Cabinet version of the Bill is the
fact that 16 and 17 year olds are treated differently from 14 and 15 year olds.
Whilst it makes sense treat those below 10 as a special category (because they
lack criminal capacity entirely), as well as those who are 10 and older but not
yet 14 (because they are presumed to lack criminal capacity until the contrary
is proven), there is no logic to treating 14 and 15 year olds differently from
16 and 17 year olds. Of course the courts will take age into consideration when
deciding how to treat a young person in the system, particularly with regard to
sentencing, the hands of the court should not be tied in the manner provided
for in the 2007 Cabinet version of the Bill. In this regard the Centre fully
supports the submissions of the CSPRI and the Child Justice Alliance.
6. Conclusion
The Child Justice
Bill provides an important opportunity to turn around problems of crime in