OVERSIGHT IN CHILD AND

YOUTH CARE CENTRES/POLICE

CELLS/PRISONJoan van Niekerk

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LAW AND POLICY REFORM FOR CHILDREN POST-APARTHEID Nelson Mandela made a firm

commitment to the care and protection of children – especially children alleged to be in conflict with the law.

The UN Convention on the Rights of the Child was signed and ratified

South Africa embarked on a process of extensive law reform relating to the care and protection of children during the late 1990’s and first decade to bring domestic legislation in line with SA’s international commitments.

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SECTION 37 OF THE CONVENTION ON THE RIGHTS OF THE CHILDProvides for:The prohibition of torture, cruel treatment or

punishment, capital punishment, life imprisonment and unlawful arrest or deprivation of liberty

The principles of: appropriate treatment, separation from detained adults, contact with family, Access to legal and other assistance

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SECTION 40 OF THE CONVENTION ON THE RIGHTS OF THE CHILDProvides for The recognition of the rights of children

alleged or who have committed offences The child’s right to due process of law Legal assistance in preparing and

presenting their defenceIt also establishes the principle that

recourse to judicial proceedings and institutional placements should be avoided wherever appropriate and possible.

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THE CHARTER ON THE RIGHTS AND RESPONSIBILITIES OF THE AFRICAN CHILDProvides for children in conflict with the

law and establishes Right to special treatment Specially trained legal representation A special court for children in which

they are treated well and politely If imprisoned, the child should not be

tortured and treated badly Children should not be put in the

same court or prison with adults

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OTHER INTERNATIONAL COMMITMENTS INCLUDE The United Nations Rules for Juveniles

deprived of their liberty

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PROVISIONS IN OUR BILL OF RIGHTS IN THE NATIONAL CONSTITUTION FOR THE CHILD IN TROUBLE WITH THE LAW Section 28 (1) (g) (Every child has the right)..Not to be

detained except as a matter of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period of time and has the right to be:

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SECTION 28 OF BILL OF RIGHTS CONTINUEDi. Kept separately from detained persons over the

age of 18 years and ii. Treated in a manner, and kept in conditions,

that take into account the child’s age To have a legal practitioner assigned to the

child by the state and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result

(2) A child’s best interests are of paramount importance in every matter concerning the child

(3) In this section “child” means a person under the age of 18 years.

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THE REFORM OF DOMESTIC LEGISLATION IN SA Began in 1997/8 Included Children in trouble with the Law Sexual Offences Against Children Children’s Act Films and Publications ActBoth the Children’s Act and the Child Justice Act speak to the protection of children in custody and secure care.

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THE CHILDREN’S ACT – PROVIDES FOR CHILD & YOUTH CARE CENTRES Can be used to provide care and

programmes for children in conflict with the law

There are numerous provisions that provide for the protection of children in these centres:

Registration is compulsory Governance Staffing Child participation Registration of the centres Norms and standards for the provision

of care. 2013/08/21 10

CHILD AND YOUTH CARE CENTRES May accept children requiring secure

care Pending trial Pending sentence Reception and development where the

children present with behavioural, psychological and emotional difficulties

To enable attendance at diversion and other programmes necessary for their rehabilitation.

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MANAGEMENT OF CYCC There has to be a management board Members must be screened against the

Child Protection Register Part B The board must have representatives

from the community There must be a children’s forum to

ensure participation in management and operation of the centre and taking into account the age, maturity and stage of development of the child.

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QUALITY ASSURANCE AND STAFFING Must be conducted at regular intervals This will be conducted independently Any development/improvement plan will

have independent oversight. Staff must be appropriately qualified

and screened Disciplinary practices have to comply

with standards and disciplinary actions recorded by staff. (no corporal or humiliating punishment.)

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THE RIGHTS OF CHILDREN IN CYCC’S Regulation 73 of the Children’s Act as

Amended makes it clear that these are protected and include

The right to information regarding his/her detention

Regular communication with family, legal and social service professionals

Adequate care Consultation regarding decisions

affecting the child Reasonable privacy , possession and

protection of personal belongings2013/08/21 14

THE RIGHTS OF CHILDREN IN CYCC’S Include: Information about expected behaviour

and consequences of compliance and/or violations

Positive discipline Protection of culture and religious

heritage Protection from exploitation and neglect Opportunities for learning Support if disabled/differently abled Access to communities activities if

allowed/the opportunity exists.2013/08/21 15

CYCC’S MUST HAVE COMPLAINTS PROCEDURE Approved by the management Allow complaints about procedures

or/and staff Accessible Structured to prevent conflict Support restorative justice processes Allow fair procedures Children must be informed of these.

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OTHER PROVISIONS IN THE REGULATIONS Appropriate programmes for

development, therapy and recreation are listed

Behaviour management is clearly defined – certain practices are banned or limited – eg the use of restraint.

Staff have reporting responsibilities relating to the care and protection of the children in their care.

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THE CHILD JUSTICE ACT – NO 75 OF 2008 Based on restorative justice principles Focusses on the diversion of children in

conflict with the law away from the criminal justice system into programmes and diversion contracts designed to rehabilitate

Attempts to balance the rights of children in conflict with the law, with those of victims and the community.

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THE CHILD JUSTICE ACT Divides offences into 3 schedules – depending on

their perceived seriousness. Children may not be arrested for schedule 1 (the

least serious) offences – but warned (in the presence of their parents or caregivers) to appear in court.

Where children are arrested and taken into custody, their release must be considered if appropriate at their first appearance. The factors taken into account are:

- Is this in the best interests of justice- the Probation Officer’s report- the child’s best interests, previous convictions, age of child, interests and safety of community, seriousness of the offence 2013/08/21 19

RELEASE FROM CUSTODY May be subject to conditions – eg

reporting, school attendance. Children may not be penalised for non-

compliance if this is not their fault. Parents may be given responsibilities to

ensure compliance. Bail can be considered – even though it

is unlikely that the child will be the person responsible for its payment.

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CONSIDERING THE PLACEMENT OF CHILD IN CUSTODY Least restrictive option must be

considered Preference is given to a child and youth

care centre Police cells or lock ups can be used – but

only as last resort

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S28 – PROTECTION OF CHILDREN DETAINED IN POLICE CUSTODY Separate from adults and the opposite

sex Vulnerability and risk of harm must be

considered Visits by parents, appropriate adults,

guardians, legal reps, social workers, PO’s and assistant PO’s, health workers and religious counsellors are permitted

Care must be consistent with the specific needs of children.

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CUSTODIAL PLACEMENT OF CHILDREN PRIOR TO CONVICTION Complaints must be recorded and

reported to the station commissioner Provision is made for immediate

medical care If injury has occurred this must be

reported to the national Commissioner of police

Registers of complaints must be kept.

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IMPRISONMENT Imprisonment is a last resort Only for children 14 years and above All sentences of children who do go

through trial processes have to be reviewed by a higher court.

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S 30 BEFORE DETAINING A CHILD IN PRISON THE MAGISTRATE MUST CONSIDER (a) the best interests of the child;(b) the child’s state of health;(c) previous convictions or charges pending against the child;(d) the risk that the child may be a danger to himself, herself or to any other person or child in a placement facility;(e) any danger that the child may pose to the safety of members of the public;(f) the risk of the child absconding from a placement facility;(g) the probable period of detention until the conclusion of the matter;(h) any impediment to the preparation of the child’s defence or any delay in obtaining legal representation which may be brought about by the detention of the child;(i) the seriousness of the offence in question; or(j) any other relevant factor. 2013/08/21 25

PLACEMENT IN PRISON SUBJECT TO CONDITIONS Bail conditions not complied with Child must be over 14 years Best interests of justice, or child, or

public Offence is a schedule 3 offence.

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INJURY OR TRAUMA TO A CHILD IN DETENTION Regulation 21 provides for a

procedure and records of complaints about injury or trauma to a child in detention.

Regulation 25 deals with complaints about the transport of children to court.

Visiting Judges Programme is also applied to the Juvenile Centres in Prisons.

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IN THEORY - Provisioning for oversight is

good/adequate In practice is it happening? Quality Assurance and oversight in

government CYCC’s is within the system.

Many have expressed concern about whether the standard of care in state institutions meets the standards provided for in law and policy that are applied to civil society organisations.

They should be universally and uniformly applied.

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MATTERS FOR CONCERN The openness of state facilities to civil

society oversight The lack of training on child law and

protective provisions The lack of diversion options for children

– resulting in children escaping the “net” of rehabilitation options and/or where these programmes do not exist, limited options for response – and the more frequent use of custodial care.

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THANK YOU

joanvn@iafrica.com or joanvn@childlinesa.org.za

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