Public Hearing of the Portfolio Committee on Justice and Constitutional Development on Child Justice Bill

Written Submission

January 2007

HEIDI SAULS, MA

PhD Researcher

Anthropologist

Amsterdam School for Social Sciences Research

Universiteit Van Amsterdam

Background

At present, I am working on a 4 year PhD project titled: ‘Violence, boys and institutionalisation in Places of Safety’. I am a registered PhD candidate at the Amsterdam School for Social Sciences Research (ASSR), Universiteit Van Amsterdam (UvA). I am now completing my second year which comprises of practical fieldwork.

I work with children, who are institutionalised in a Place of Safety, Cape Town. These children have committed crimes from ‘less serious’ house breaking and thefts to the ‘more serious’ crimes of rape, murder, etc. The sample group of boys is younger than 15 years old and according to the Child Justice Bill perceived to be unable to form intent and criminal capacity. My preference for this particular age group is because they are less presented compared to the older, adolescent boys in relation to perpetrating violence.

This project explores the following objectives:

1. to explore the socio-political and legal-political perceptions of violent children

2. to study the day-to-day enactment of children’s lives in Places of Safety

3. To describe children’s own experiences, perceptions and strategies regarding violence outside and inside the institution.

Therefore, these kinds of interaction and comments on various policies relating to children in South Africa is of great importance to my project as I am also analysing the various existing policies relating to children in S.A.

* This submission however is an individual comment on the legislation. It is by no means the comments of the ASSR or UvA. In addition, these comments are all based on preliminary findings of my existing project.

SUMMARY OF WRITTEN SUBMISSION ON THE CHILD JUSTICE BILL

(a) This paper suggests that the justice system rethink the concept of ‘criminal capacity’ of children under 14 years. It is important to realise the complexities of the concept of ‘criminal capacity’ and to understand how this concept is socially and concernedly constructed.

(b) We have to deal with criminal capacity as a separate concept to ‘intentionality’ of the criminal act. When dealing with ‘intentionality’ we should explore and define it as a reflection of the ‘motive’ of the criminal act in relation to children who perpetrate violence and criminal acts.

(c) The importance of exploring the ambiguous nature of the objectives and role of the Places of Safety. Also, to reflect on the difference between what is stated in the policy compared to the day-to-day practices of the institution.

(c) The conditions of the various placements for the children are not always conducive for their development and protection and needs to be restructured.

COMMENTS ON THE EXISTING CHILD JUSTICE BILL

(1) RETHINKING THE CONCEPT OF ‘CRIMINAL CAPACITY’

Referring to Chapter 2, Part 2 and 3, pg. 12-15

When dealing with the concept of ‘criminal capacity’, it is important to identify he complexities of this concept for the following reasons:

When dealing with the idea of criminal capacity, it is important to question whether criminal capacity can be measured. And, even through psychological observations and assessments, can this be measured and if so, how? Regardless of this complexity, it is my perception that measuring and assessing a child does not necessarily make it possible to explore whether a child has ‘criminal capacity’. Instead, the idea of ‘criminal capacity’ can also be perceived as a concept that is constructed. For instance, when a decision is made relating to a child’s criminal capacity the different measures of concluding this is relative. In other words, when the criminal capacity of a child is ‘measured’, we do however have to explore issues such as the relationships the child has with the assessors, individuals’ perceptions of good and bad, the history of the child’s violent and criminal behaviour, the image of the child, etc. Therefore, when deciding on a child’s criminal capacity, it is rather complex and needs further exploration and understanding as these factors mentioned above (such as the ‘who reports the case’ for instance) affects the management and consequences of the child’s behaviour. For instance, I am working with a boy of 14 years old who is institutionalised for months already for a theft charge. Then, however, there is a 14 year old boy that has committed murder and is in the care of his mother. What creates these huge discrepancies and consequences to these various criminal acts? How are these decisions of criminal capacity, the ‘seriousness’ of these crimes and the consequences decided upon?

In addition, when dealing with ‘criminal capacity’, it is important to mention the extension and relation with the concept of ‘intentionality’. When using the concept of ‘criminal capacity’, intentionality should also be explored and included. It is my understanding that when we deal with a child having ‘criminal capacity’, we are also exploring whether a child is able to form intent, a child’s intentionality to commit a crime. This complicates the assessment of whether a child can form intent to commit a crime and whether a child has ‘criminal capacity’. To further develop this comment, when dealing with children and the ability of ‘criminal capacity’, it is important not to explore this as an issue of moral decisions of right and wrong because perceptions of morals, right and wrong are relative. In this case, criminal activity might be perceived as not only a necessity, for various reasons, but also an action that is normalised.

Children who are 10 years old, but below 14 years old and ‘who commits an offence is presumed to lack criminal capacity, unless he or she is proved to have such criminal capacity in accordance with section 10’, according to the Bill. However, when exploring such a statement, my perception is that the child’s accountability for this action is lessened. The child’s action and thereof, accountability is then subdued. In other words, the child will not be held responsible for a criminal act (unless otherwise stated after assessments, etc).

Based on my preliminary findings, through observation and discussions with the children, who are younger than 14 years old, many seem to have the ability to ‘form criminal capacity’ and ‘intent’. This assumption can be as made as the children who state themselves that they would for instance, perpetrate theft as a means of sustaining their drug habit. Therefore, it is would be idealistic to perceive that children are not able to intentionally perpetrate a criminal or violent act.

(2) AMBIGUOUS OBJECTIVES AND ROLE OF PLACES OF SAFETY

Based on the definitions and objectives of a ‘Place of Safety’ (Child Care Act) and ‘Placement Facilities’ (Child Justice Bill), comparing them to the actual day-to-day activities and implementation thereof, the roles and objectives of a Place of Safety are ambiguous and dissimilar. When reading the bill, the assumption can be made that, where possible, the system attempts to manage the child in a ‘space’ where it creates the possibility for the child to by-pass the criminal justice system and even possibly return to the community (if so decided, depending on the offence, etc.). However, whilst working in a Place of Safety, through ethnographic fieldwork, it can be suggested that this type of institution extracts the child from their environment and places them into a different ‘space’ and ‘culture’.

Therefore, the role and objectives of the Place of Safety needs to be redefined. Is the Place of Safety available only to ‘hold’ the children until they are sentenced? Thereby not attending to their developmental needs and rights such as schooling, for instance? Or, can a Place of Safety be transformed into an institution that can somehow attempt to sustain a level of interaction and encourage development that allows for the child to return to the community?

Exploring the findings that I have encountered thus far, in relation to the current role and objectives of a Place of Safety, I can only but describe it as a ‘holding pin’ for children awaiting trial. This comment is made based on the reasons that commence in the next section on ‘Improving conditions of placement facilities’ of which is based on the preliminary findings of my project.

(3) PLACEMENT OF THE CHILDREN

Chapter 4 – Release or Detention and Placement of Child prior to sentence, Part 2

(3.1.) When referring to the ‘Objects of the Act’ (page 10, 11), many of the objectives that the bill is attempting to achieve are not being attained when directing the focus to the placements of many children who commit criminal acts. This section will specifically place emphasis on children’s incarceration in the setting of a Place of Safety

During the 8 months that I have been conducting my ethnographic fieldwork in a Place of Safety (and having been exposed extensively to two other Places of Safety), I was confronted with many conditions that are unfit and ‘unhealthy’ for the incarceration of children, especially when considering that the objective of the Child Justice Bill also aims at creating a possibility of the child’s return into the community. These conditions create an even more complex and challenging responsibility when they return to their communities, families and every day activities in the society.

At the institution where I am working, these are a few of the conditions that are NOT conducive for the development and protection of the children incarcerated:

1. Children are supervised and surveilled in restricted ‘spaces’ at the institution. For instance, when I am working with the boys, most of the time, we interact in a confined room, where about 15-20 boys and 3 care workers are housed. Consequentially, due to the various physical structures of the institution, restrictions of the children’s movements, among other factors, frustration develops and even later, violence amongst the children and staff.

2. Generally, the children attend school for a few hours a day (2 hours maximum). When this child has to return to the community, many are at risk of repeating the schooling year that had been interrupted. In addition, the schooling that they receive at the institution is minimal and of a lower standard. However, as research has indicated numerous times, there is a relation between children failing at school and the increased risk of involvement in criminal activity.
3. When children are not occupied in school, care workers have to occupy the children with various programmes, sports, etc. However, based on my observation, this is not the case. Due to various challenges that the care workers are also struggling with (which will not be mentioned here), they are sometimes unable or unwilling to constantly engage with the children on this level. Also, when they do engage, various care workers engage with the children on various levels. Care workers with an education background engage and interaction different to care workers with no formal training. As a result, children find alternative ways to occupy themselves and develop ‘recreational activities’.

4. Therefore, it is of importance that the care workers, who deal with the children constantly, have to be ‘cared for’ themselves as their working conditions can create a difficult environment to excel in and develop, personally and professionally. In addition, child care workers should be educated in issues relating to the well-being of children and they should be educated on various topics such as: conflict management, child development, stress management, to name a few.

5. Then, some institutional practices at the Place of Safety can also be debilitating for the children incarcerated. Children are physically moved from one ‘dorm’ to another for various reasons. In most cases, when a child is being abused or abusing others, the institution manages this by moving the child to a new ‘dorm’. This shifting between different ‘spaces’ creates challenges such as: uncertainty, breaking down of relationships, safety issues, etc. for the children. Therefore, this movement of the children should also be reconsidered.

(3.2) Secondly, children are transported to the cells at the courts, while to appear on specific dates. After visiting some of my respondents in these cells, I noticed that the younger boys (with whom I am working) are incarcerated with the older adolescent boys. These younger children have reported various instances of abuse not only in the police cells but also, on their way to the courts. These younger boys are robbed of their belongings in the police vans already and then, they have to sit in the police cells the entire day without food, etc. Therefore, if possible, the younger children should be escorted and ‘locked up’ separately from the older, adolescent children. If this is not possible, then, we have to increase the protection of these younger children when being transported and ‘locked up’.

(3.3) Another concern relating to the detention/ placement of these children is the extended time frames in these Places of Safety. Many of the respondents that I am working with are spending almost over 6 months in this placement. There are also a few respondents who are close to spending a year in the centre. For instance, a respondent said, ‘outside, everything else is going on, and I sit in here where time stands still’.

It is unclear as to why these boys are experiencing such long, extended periods in these institutions and therefore experiencing uncertainty about their criminal acts and the sentencing they will receive (if any). However, various respondents expressed concerns of their legal representatives just ‘not showing up’ to their court appearances for instance. Therefore, more attention should be given to the state legal representation that is offered to the children being represented and if possible, somehow overviewed more often.

(3.4) Then, a concluding remark, the Child Justice Bill refers to ‘errors of placement’ and when noticing that there has been an error in placement, the ‘error should be corrected’. It is however critical that these kinds of ‘errors’ are minimal. When these ‘errors’ happen in the justice system, it is not as easily ‘corrected’ in the experiences of the child. Children who are exposed to any form of placement (awaiting trial or sentenced) experience high levels of violence and abuse. Therefore, if such an ‘error’ does occur, it is of great importance that the system allows for ‘follow up’ sessions with the children to explore experiences of violence, etc. and teach the child various strategies on how to deal with their experiences.