Oversight in Child and Youth Care Centres/Police Cells/Prison

1. Oversight in Child and Youth Care Centres/Police Cells/Prison Joan van Niekerk 1 2013/08/21

2. 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. 2 2013/08/21

3. Section 37 of the Convention on the Rights of the Child Provides 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 3 2013/08/21

4. Section 40 of the Convention on the Rights of the Child Provides 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 defence It also establishes the principle that recourse to judicial proceedings and institutional placements should be avoided wherever appropriate and possible. 4 2013/08/21

5. The Charter on the Rights and Responsibilities of the African Child Provides 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 5 2013/08/21

6. Other international commitments include • The United Nations Rules for Juveniles deprived of their liberty 6 2013/08/21

7. 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: 7 2013/08/21

8. Section 28 of Bill of Rights continued i. 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. 8 2013/08/21

9. 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 Act Both the Children’s Act and the Child Justice Act speak to the protection of children in custody and secure care. 9 2013/08/21

10. 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. 10 2013/08/21

11. 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. 11 2013/08/21

12. 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. 12 2013/08/21

13. 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.) 13 2013/08/21

14. 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 belongings 14 2013/08/21

15. 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. 15 2013/08/21

16. 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. 16 2013/08/21

17. 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. 17 2013/08/21

18. 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. 18 2013/08/21

19. 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 19 2013/08/21

20. 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. 20 2013/08/21

21. 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 21 2013/08/21

22. 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. 22 2013/08/21

23. 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. 23 2013/08/21

24. 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. 24 2013/08/21

25. 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. 25 2013/08/21

26. 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. 26 2013/08/21

27. 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. 27 2013/08/21

28. 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. 28 2013/08/21

29. 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. 29 2013/08/21

30. joanvn@iafrica.com or joanvn@childlinesa.org.za THANK YOU 30 2013/08/21