CREATING A LEGAL AID SYSTEM IN SOUTH AFRICA FOR CHILDREN & YOUTH

1. 25 August 2014 Prepared by Arina Smit & Venessa Padayachee CREATING A LEGAL AID SYSTEM IN SOUTH AFRICA FOR CHILDREN & YOUTH

2. Our presentation • Not focus on clause by clause of the Bill; • Interpreted provision of a Legal Aid much more broadly and call for a Legal Aid Bill that adopts • a more comprehensive provision –which should includes legal advice, assistance, representation, education, and mechanisms for restorative justice & “alternative dispute resolution.” Further legal aid is nor dependent on a lawyer and includes other service providers, community-level work, and incorporates traditional (and alternative) mechanisms for providing assistance. (supporting UNICEF/UNODC definition of child-friendly) • We feel the current Bill speaks mainly to the establishment of Legal Aid South Africa, and its governance, and procedural issues and does little to talk about the comprehensive provision of effective Legal Aid in South Africa. To allow for this comprehensive provision, may include drafting of further Regulations; • Our submission - focus on what does it mean to provide legal aid for the poor and vulnerable, and in particular unpacking further the access of legal aid for children, looking specifically at child and adolescent development and behaviours and how it affects criminal capacity, offending behaviour, sentencing options and participation in the legal process; • The Legal Aid Bill itself, does not even mention the word poor and vulnerable and children, let alone the need for in-depth and continued professional training ; nor does it talk to duties spelt of lawyers and non-lawyers delivering legal aid, and their understanding of child and adolescent development, and communicating effectively with children and their caretakers • Our concern is the negative impact of the present punitive system of justice on children in SA, as well as a lack of adequate understanding of legal representatives about the development and behavioural differences of children in conflict with the law. • We also call for additional provisions for children and access to legal representation in the legislation and specific regulations for in-depth continued training of legal representatives in child law, and child and adolescent development and behaviour- Legal Aid Bill, relevant regulations, included in Legal Aid Guide/Manual(procedural). This has bearing on other pieces of legislation –Child Justice Act 75 of 2008 and Regulations; The Legal Practice Bill [B20D-2012] etc.

3. INTRODUCTORY COMMENTS • Lilongwe Declaration of Accessing Legal Aid in the Criminal Justice System in Africa (2004) • –characterizes the provision of and access to legal aid(at least in the criminal law context) as a human right, and calls on governments to adopt measures and allocate sufficient funding to “ensure an effective and transparent method of delivering legal aid to the poor and the vulnerable, especially women and children, and in so doing empower them.” • Because of the Socio-economic adversities; Gross inequalities; High costs of legal services; Remoteness of the law from people’s lives we need a comprehensive system of legal assistance for poor people that: allow their issues to be adequately articulated; to promote parity in the legal process; • Ineffective legal aid leads to further marginalization of the poor and vulnerable. Children are often the most disadvantaged. • Need a legal aid system of distinction, -on par with those that have paid legal representation; • YET, Preamble of Bill does not even mention the poor and the vulnerable; • Challenges of quality and access to justice for the poor remain; • JICS Annual reports (2011/2012, -33,866 complaints - legal representation; 2010/2011, 28,804); PC: Correctional services Handover report May 2009-March 2014

4. Anecdotal accounts NICRO Clients: • “I only saw the legal aid attorney once, and then saw him in court,” • “I do not know what is happening” • “my attorney did not appear in court today and my case was remanded. The judge said it was because my attorney was not in court.” Professionals: • Attorneys/legal aid attorneys do not always understand the processes when it comes to child justice and Children’s Act issues; • They do not ask the right questions when it comes to children, • “it is often very difficult to access Legal Aid attorneys/attorney’s about a child who has just been arrested”; • legal aid attorneys do bare minimum and don’t fight the case at its merit; • “legal aid attorneys, at times push the children and adults to plead guilty, and they don’t know all the options, only focus on legalities and charge, and look to find the easiest way out.”

5. Justice denied… • Inexperience of attorneys, delays in justice, access to information, inadequate preparation; lack of capacity to deal with the needs of the poor and the vulnerable; not protecting the right to a fair trial; • Don’t necessarily investigate and complain if their clients’ cases are senselessly postponed; • found attorney’s not familiar with diversion, non-custodial or alternative sentencing (for both adults and children),and the differences between the two • “Justice delayed is justice denied”. • not enough is being done by Legal Aid attorneys to advocate for alternatives to incarceration; • Ad hoc ongoing training? • issues of capacity, and the general poor administration of justice is factors that contribute to the ineffective delivery of Legal Aid.

6. What is the status of providing representation then to children? • Are we treating children differently from adults? • Do we have an adequate understanding of what that difference is? • Do we allocate adequate resources to those services for a child’s development relevant to promote the child’s rehabilitation and reintegration into society e.g affordable and available therapeutic services for children? • Legal, social, cultural norms, as well as practical constraints may complicate issues of justice for children.

7. Every day in South Africa children come into contact with the justice system, where formal and informal justice providers make decisions that have the potential to influence the course of their lives. What rights do these children have when they come into contact with the law? Are they automatically entitled to legal assistance and broader legal representation? If so, how might those services best be made available and actually reach children in crisis? How can legal aid be made ‘child friendly, given financial and logistical limitations? • In detention in SA, many children suffer violations of their rights - they may be detained with adult prisoners –are exposed to torture, physical and emotional abuse. • The current state of Child and Youth Care Centres are also of concern, with similar abuses reported, and can you believe there is no independent oversight of these facilities. In South Africa we need to AGAIN have a robust discussion on how best to provide children with meaningful, effective, affordable, and age appropriate legal assistance on the Ground.

8. International and regional instruments • The UN Convention on the Rights of the Child (CRC) • refers to a “child’s representative” ...and states that any system of assistance should take a child’s evolving capacity into account. There are other issues pertinent to the needs of children, who need legal assistance, which has implications for training • UN Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”, 1995) • “in-service training, refresher courses and other appropriate modes of instruction shall be utilized to establish and maintain the necessary professional competence of all personnel dealing with juvenile cases (Rule 22.1). although the Beijing Rules are principally directed at juvenile justice proceedings, their principles can be extended to all matters in which a child’s legal interests are an issue. (UNICEF/UNODC- Child Friendly Legal Aid in Africa); • 2007, the UN Committee on the Rights of the Child addressed children’s rights in juvenile justice proceedings in General Comment No. 10 • legal aid can also be provided by social workers, paralegals or others, but cautions that anyone who provides legal aid to a child “must have sufficient knowledge and understanding of the various legal aspects of the process of juvenile justice and must be trained to work with children in conflict with the law.; • Council of Europe guidelines on Child Friendly Justice (November 2010) most comprehensive and developmentally grounded definition of child-friendly justice to date, and state that • “lawyers representing children should be trained in and knowledgeable on children’s rights and related issues, receive ongoing and in-depth training and be capable of communicating with children and young people at their level of understanding.” (Par.IV (D) (2) par.39).

9. UNICEF/UNODC DEFINITION “is the provision of legal assistance to children in criminal, civil and administrative proceedings that is accessible, age appropriate, multi-disciplinary, effective, and that is responsive to the range of legal and social needs faced by children and youth. Child-friendly legal aid is delivered by lawyers and non-lawyers who are trained in children’s law and child and adolescent development, and who are able to communicate effectively with children and their caretakers” -Child-Friendly Legal Aid in Africa, UNICEF & UNODC, June 2011, pg iv. • In the above definition, the term, “legal-aid” is defined broadly to include legal advice, assistance, representation, education, and mechanisms for “alternative dispute resolution.” • The term “age-appropriate -provision of legal assistance -sufficiently flexible -take into account - child’s evolving capacity and of participation over the course of childhood and adolescence. • Understanding child and adolescent development is fundamental to understanding children’s behaviors and their capacity to participate in legal proceedings, including their ability to interact with those who assist them, understand what is at stake, and make informed choices about their legal situation. -Child-friendly Legal Aid in Africa –UNICEF/UNODC, June 2011

10. UNDERSTANDING THE DEVELOPMENTAL DIFFERENCES AND EXPERIENCES OF CHILDREN IN CONFLICT WITH THE LAW • Magnetic Resonance Imaging (MRI)- look inside - developing brain, -chart maturational process. • evolution from childhood to adulthood -marked by significant physical, cognitive, and emotional developmental changes. • evolution and changes from childhood to adulthood have a biological basis in brain development, and are relevant across all cultures and contexts. • Child-Friendly Legal Aid in Africa-UNICEF& UNODC, pg 6

11. BRAIN DEVELOPMENT • Two findings in particular - relevant to understanding children’s behavior and their ability to participate in legal proceedings, as well as understanding the offending behavior • Brain’s gray matter (the thinking part of the brain) -three stages of development & subsequent pruning to promote organized growth. • Pre-frontal cortex-last part of the brain to fully mature -responsible for planning, reasoning, and self-control, and it does not fully develop until young adulthood. In the absence of frontal brain development, children rely heavily on those more fully developed parts of the brain that control emotions rather than thinking. • As a result, children and adolescents may behave differently than adults in the areas of risk taking, impulsivity, peer influence, long-range planning, and decision. • Child-Friendly Legal Aid in Africa-UNICEF& UNODC • Also relevant is ability to make decisions including legal decisions-communication with legal practitioners..

12. Other factors • Family and community factors, family dynamics, poverty, past experiences, societal influences, and educational achievement, also affect a child’s behavior and ability to participate in legal proceedings. • These external non-biological culture-specific influences impact the ways in which children: • conceptualize their surroundings, the nature of their dilemma’s that they face, especially when they are in crisis and have experienced trauma, and their processes for decision-making about how to resolve the problems that cause them to need and seek legal aid. • Child-Friendly Legal Aid in Africa-UNICEF& UNODC

13. Case studies • 6months – 12 criminal capacity assessments of children ranging 10 – 14 years – none of these cases are we aware that children have legal representation • 16 year old – brain damage after a 2 road traffic accidents – currently in detention – being used by adults to commit crime – no awareness of legal representation When does the legal representation by an attorney begin and how do they interact with other professionals working with the child?

14. Profound IMPLICATIONS • understanding children’s behaviour, • fashioning our legal system even further and for providing child-friendly justice and legal aid in South Africa. • practical effect -developmental differences between adults and children – • For example-children engage in conduct that is perceived and prosecuted as calculated criminal behaviour, but which is in fact a spur-of-the-moment manifestation of poor judgment based on immature thinking. • A properly functioning juvenile justice system should take into account his developmental reality when making decisions about a child’s criminal capacity/culpability, competency to participate in legal proceedings, and capacity for rehabilitation. Interact age appropriate and be the guidance children need from adults

15. Current legislation • CJA 75 OF 2008 & REGULATIONS; • Regulations related to Child Justice: • Chpt 6(28)(3) – “the child must be treated with care and understanding.” how??; Chpt 10 on Legal representation • Not much emphasis on duties of legal representatives/ lawyers are to do in respect of children in legislation? • Chapter 10(48)(1d), “ensuring the best interests of the child are upheld at all times?; Chpt 10(48) (2g), “present evidence that will be in the best interests of the child.”; Chpt 12 (55) (1e), a person who is by law empowered or mandated to take care of the interests of a child, including a legal representative; • Policy amendments -2014 Legal Aid Act and Legal Aid Guide, which includes: Section 82(1) providing for legal representation of children who do not have their own representative; • TRAINING -Chapter 11 of the Child Justice Act 75 of 2008-Legal Representation,-section 80 -requirements to be complied with by legal representatives, The CJA- not included provision for the training of Legal aid staff and other legal representatives in Child Justice Issues. Section 97, Regulations, directives, national instructions and register, and refers to Training by NPA, SAPS, DSD, Health and DCS, social context training in respect of child justice; • no reference in the Legal Aid Bill or Legal Aid Guide • Legal Practice Bill Chapter 1 (3)(iii) development of adequate training programmes for legal practitioners and candidate legal practitioners; Chapt 2(5)(h) promote high standards of legal education and training, and compulsory post-qualification professional development; Chpt 2 (6)(1)(xi) provide financial support to organisations or institutions providing legal education and training, including legal education and training for purposes of compulsory post-qualification professional development, with the object of enhancing the standards of legal services and increasing access to justice; Chpt 2 (6) (1) (xii) provide financial support to legal practitioners, organisations or institutions for the purposes of providing work-place training opportunities for candidate legal practitioners; chpt 2(6) (xiii)provide financial support to non-profit organisations and institutions promoting access to justice for poor people; Chapt2(6)(5) (e) may determine, after consultation with relevant role-players and legal practitioners in general, conditions relating to the nature and extent of continuing education and training, including compulsory post-qualification professional development; Chpt 2 (6)(5) (f)( i) provide appropriate legal education and training, having due regard to our inherited legacy and new constitutional dispensation; and (f) (ii) offer legal education and training to aspiring and newly appointed legal practitioners, as well as continued training for experienced legal practitioners; community service in an NGO; Chpt 9(94) (1) The Minister may, and where required in the circumstances, must, subject to subsection (2), make regulations relating to any other matter in respect of which regulations may or must be made in terms of this ActNOT SUFFICIENT ATTENTION TO MORE SUBSTANTIVE ISSUES REGARDING THE REPRESENTATION OF CHILDREN. Do not discuss the unique attributes and needs of child clients, nor the skills that legal assistance providers must have in order to effectively deliver child-friendly legal aid (pgiv). -Emerging research on child and adolescent development, and the importance of structuring legal assistance schemes in ways that take into account children’s developmental immaturity and their evolving capacities over the span of childhood is critical and necessary, which makes indepth and ongoing training/professional development necessary. -

16. In-depth and ongoing training for legal practitioners • whether or not formally trained in law, should receive ongoing training in areas of relevance to the representation of child clients. • Training in laws and policies -theoretical and practical. • training in substantive legal concepts and applicable laws, regulations and rules, as well as skills training in advocacy, negotiation, and mediation should be problem-based and interactive; • core competencies, grounded in the psychological, social and cultural dynamics affecting children, include effective interviewing, investigation, counseling, negotiation and advocacy -UNICEF/UNODC report, 2011

17. Core components of child-friendly legal aid • Legal awareness • Geographic access • Programme access • Financial access • Legal access • Developmental access • Participatory access • Establishing priorities for access to Legal Aid

18. Key elements –continuous training programme • Knowledge of laws, regulations, and practices relevant to the provision of child-friendly legal aid; • Knowledge and skills necessary to establish relationships with children, based on knowledge of developmental differences between adults and children, that foster complete and effective communication so that all relevant information is known and considered in decision-making; • Acknowledgement of the role of the child and his or her evolving capacity in making decisions about steps to be taken on his or her behalf and accommodation of the role of the child in decision-making in the exercise of professional judgment by the legal aid service provider; • Exercise of effective advocacy on behalf of the child, including determining what model of advocacy will have the most positive short-term and long term effects upon individual children and groups of vulnerable children; • Training and skill in understanding the cultural and community contexts in which legal aid is being provided; • Thoroughness in understanding the problems faced by children and vulnerable groups of children in designing solutions to these problems; • Ability to conduct thorough investigations to discover all facts relevant to the provision of child-friendly legal aid; • Ability to navigate multiple systems effectively utilizing the skills of advocacy, negotiation, mediation, and in court-advocacy to achieve desired results; • Knowledge and ability to link children with other essential service providers to ensure those children’s needs are addressed in a comprehensive manner.

19. Dealing with children • how lawyers, paralegals, and others who provide legal assistance to children should interact with child clients and their families, with child and other victims, with the police and the prosecuting agencies, or with courts or tribunals designated to adjudicate cases. • how the availability of legal services should be made known to children and their families? • How should the relationship between the children and their lawyers/legal aid service providers take into consideration the developmental status of children? • What is the relationship between a child’s best interest and a child client’s right to participation in the proceedings? • How and to whom should the specific skills and knowledge necessary for the effective provision of legal aid to children be identified and imparted, and by whom should it be evaluated? What skills should be possessed by legal aid providers who interact with children in need of legal aid on the ground? • The answers to these questions should be informed by the environmental, cultural, and psychological factors influencing child development in South Africa for instance. -Child-Friendly Legal Aid in Africa-UNICEF& UNODC, pg5

20. Some considerations.. • Provisions -International and regional instruments –training child and adolescent development needs to be now included in domestic legislation: • Amendments to the Child Justice Act & associated regulations; • Designated legal aid practitioners FOR CHILDREN, trained in child justice and skilled in working with children, incl more human rights advocacy on the part of legal practitioners; • Broadening definition of Legal aid in legislation -broadening the scope of legal aid provision which include service providers, that are non-lawyers and NGO’s etc. Who should deliver legal services is overall an important question to ask, particularly given the limitations in human capacity, which is one of the barriers to an effective legal aid service? • Adopting a functional approach to service delivery focuses on the nature of the task to be performed and on the skills and competencies necessary to perform the task; • Coordination with other agencies and groups providing legal aid is imperatives to minimize the duplication of efforts, and to ensure that children are linked to essential services. • Co-operation agreements; • Increasing the allocation of budgets to Legal Aid • Alternatives such as Restorative justice should be used more frequently by legal aid practitioners themselves; • There is provision in Legal practice Bill-(SA Legal practice council and provincial councils-regulate affairs of legal practitioners; set norms and standards; regulate accountable professional conduct; Office for Legal Services Ombudsman; National forum on the legal profession); for continued professional development for legal aid practitioners/service providers, however regulations for training with respect to child and adolescent behaviour needs ; • Relevance for • Ongoing and in-depth training on child and adolescent development and behaviour should feature in the proposed broader more comprehensive Legal Aid Bill, and the Legal Aid Guide and and complementary legislation,- • The Constitution, Chapter 2-Bill of rights, Section 28, and The Child Justice Act 75 of 2008 and regulations; The Children’s Act38 of 2005; Attorney’s Act 53 of 1979; Legal Practice Bill [B 20D—2012], and the Legal Aid Bill itself, should as much as mention the differences in provision of legal aid for children versus adults;

21. IMPLICATIONS FOR THE LEGAL AID BILL • Specifically –where will concerns be covered regarding provision of comprehensive Legal Aid?? • The Legal Aid Bill be broadened to cover the provision of comprehensive legal aid, and associated regulations be developed; • More needs to be done to look at specific measures required of legal aid practitioners in dealing and interacting with children and juveniles, core competencies and skills required, and functional tasks of legal practitioners and other stakeholders; • The aspect of in-depth training be covered in the primary legislation and associated regulations; • Section 23 of the Legal Aid Bill [B8-2014], refers to the compilation of a LEGAL AID MANUAL –there is no Manual but a Legal Aid Guide, so not sure if a manual will still be developed or does one need to change the wording of Manual to Guide? • The Legal Aid Guide to incorporate findings of UNICEF/UNODC 2011 paper on Child-friendly Legal aid in Africa.

22. Concluding remarks • Other relevant issues to constructing a child-friendly justice system: • includes the key role of prevention, the question of child-friendly court-room procedures, vulnerable groups, and the broader context of children and families who come into contact with the law; • The provision of legal assistance is only a small part of the larger question of how best to conceptualize, build, and implement a comprehensive set of social and economic supports designed to protect children and promote their dignity and well being (pg 2) -Child-Friendly Legal Aid in Africa-UNICEF& UNODC. • An effective Child Justice system: • promotes the strengthening of all parts of the child protection system, including the justice mechanisms, to operate in the best interest of the child; promotes alternatives to detention, such as diversion, and non-custodial sentencing, as well as restorative justice that emphasizes repairing the harm caused or revealed by criminal behaviour; supports the ongoing training of police, prosecutors, judges, lawyers, paralegals, social services and health professionals to effectively protect children in contact with the justice system, considers the traditional dispute resolution mechanisms within communities; looks at the establishment of child sensitive problem-solving courts and police procedures that give primary consideration to a child’s right to protection and are consistent with the Convention on the Rights of the Child and other non-binding international standards, guidelines, and rules; and encourages cooperation and coordination among all service providers working with children.

23. REFERENCES: • Attorneys Act 53 of 1979 • The Child Justice Act 75 of 2008 • The Child Justice Act (75/2008): Regulations relating to child justice, No. R. 251, 31 March 2010. • Professor David McQuoid-Mason, Challenges when drafting legal aid legislation to ensure access to justice in developing countries with small number of lawyers: Thinking out of the box, President of the Commonwealth Legal Education Association, Centre for Socio-legal studies, UKZN, SA. • JICS Annual Reports, 2010/11 and 2011/12. • Access to Legal Aid in Criminal Justice Systems in Africa –Survey report, UNODC, April 2011. • Child-friendly Legal Aid in Africa, UNICEF/UNODC, June, 2011. • Legal Aid South Africa Annual Report, 2012/13 • Legal Practice Bill [B20D-2012] • The Legal Aid Bill [B8-2014] • Legal Aid Guide • Portfolio Committee on Correctional Services Handover Report, May 2009-March 2014.

24. There may be times when we are powerless to prevent injustice, but there must never be a time when we fail to protest–Elie Wiesel.

25. THANK YOU and GOD BLESS YOU! • ARINA SMIT NICRO NATIONAL MANAGER: CLINICAL UNIT AND PROGRAMME DESIGN AND DEVELOPMENT TEL: 021-462 0017 Cell: 082 2006400 arina@nicro.co.za • VENESSA PADAYACHEE NICRO NATIONAL MANAGER: ADVOCACY AND LOBBYING TEL: 021-462 0017 Cell: 082 20 20 2 02 Email: venessa@nicro.co.za