Existing Services to Children: Children’s Courts

1. CHILDREN’S COURTS CHAPTER IN CHILDREN’S BILL, NO. B70 OF 2003 AS RE-INTRODUCED: PRESENTATION TO PORTFOLIO COMMITTEE ON SOCIAL DEVELOPMENT 25 AUGUST 2004 ADV P A DU RAND, PROGRAMME MANAGER: SPECIALISED COURTS AND PROMOTION OF THE RIGHTS OF VULNERABLE GROUPS BUSINESS UNIT: COURT SERVICES DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT

2. Existing Services to Children: Children’s Courts • Children’s Courts: they are thereto protect neglected, abused and exploited children and remove them from abusive situations – all magistrates’ courts are children’s courts. • Infrastructure: • Proposed Children’s Courts in Children’s Bill, will stay the same. • Number of Childrens’ Court-matters handled in 2002 per province, is as indicated. Statistics for 2003, are still being compiled. • Family Court Centres: These centres focus on dealing with family matters in a specific way: all family-related courts are in one centre so that an appropriate court environment and necessary support services can be provided. Divorce Courts, Maintenance Courts, Domestic Violence and Children’s Courts are part of the Family Court Centres. There are five main centres at the moment and the concept is being rolled-out to other centres during this financial cycle. • Child Justice/ Juvenile Courts: have as aimto divert children in trouble with the law, as much as possible from the mainstream criminal justice system. One Stop Child Justice Centres are in the process of being established, of which there are three (3) at the moment.

3. Children’s Courts-matters handled in 2002

9. Existing services to children in Children’s Courts: • Human resources at national, provincial and local levels: • All Magistrates are Commissioners of Child Welfare (presiding officers in Children’s Courts); • Clerks of the Court act as Children’s Court Clerks. • Material resources at national, provincial and local levels: • All Magistrates’ Courts have Children’s Courts, which are held as far as possible, in rooms which are not ordinarily used for criminal court-cases.

10. Challenges and gaps: • Children’s Courts Assistants: • Children’s Court Assistants (paralegals/ social workers in Children’s Courts) have been envisaged as far back as 1998, but the Department of Social Development has never had funds to fund such extra posts/ appointments. • There is a big need for the appointment of Children’s Courts Assistants as a separate postclass in Children’s Courts, in order to assist Magistrates with the workload in this regard. The Department of Justice and Constitutional Development is now considering recommending such extra posts, but there is currently a lack of budget in this regard. Cabinet further requested that all such major cost-drivers be taken out of the original Bill, as otherwise the provisions might be non-implementable. • The present Children’s Court Clerks will be trained, developed and more administrative staff will be appointed in phases as funds become available in this regard.

11. Challenges and gaps: • Reviewing of Courts Structure: • The rationalisation of the Courts Structure under the Chair of the President of the Constitutional Court, is well under way. A Superior Courts Bill is at present before the Justice Portfolio Committee in order to align the High Courts’ jurisdiction with the Constitution and the present provinces. • The rationalisation of the lower courts is as a next step also receiving attention. • The rolling out of Re Aga Boswa and the Family Courts Project, are receiving priority attention.

12. Addressing challenges through the Children’s Bill: • Regarding the availability of Children’s Courts in rural areas, all 471 Magistrates’ Courts are Children’s Courts and therefore we do not have to wait for the roll-out of the Family Courts Project or the finalisation of the restructuring process of the courts. • The Children’s Bill will give wider powers to the Children’s Courts in order to protect children from abuse, neglect and exploitation. • However, the High Court still has inherent jurisdiction to act as Upper Guardian of all Children. • The Department together with Justice College and the Lower Court Judiciary, will assist with empowering Children’s Courts through the training of the presiding officers and administrative personnel; and provide extra resources to such Children’s Courts, such as child-friendly waiting rooms, intermediaries, etc. where possible • The Department will request National Treasury for extra funds for the appointment of Children’s Courts Clerks/ Officers in order to strengthen the courts. However, this will have to be phased in, because if one paralegal costs R77 000, 471 will cost = R36 267 000, per annum. If one starts with 50 such Assistants per year, this will mean a need for an extra R3 850 000 for the first year of implementation.

13. Cost implications: • What is available: • The Department has funds for the implementation of legislation for this financial year for R10 million – this includes all Vulnerable Groups, including Equality Courts. • The Department further has funds for the implementation of the Family Courts for R16 million for this financial year. • What is needed: • Preliminary costing for implementation of current version of the Children’s Courts Chapter of the Children’s Bill: R15 million, because Department plans on implementing in phases and has made provision in other Projects for some funding, for example, the appointment of contract intermediaries and the extension of the services of the Family Advocate to Family Courts. • Preliminary costing for implementation of the S A Law Reform Commission Bill: R139 415 950 (please see attached slide) • Gaps: • Extra funding has been requested from National Treasury for the MTEC-period for the next three financial years.

14. Tentative costing on SALRC-version of Children’s Courts Chapter • Current Childrens’ Courts will continue. However, existing infrastructure leaves much to be desired and the upgrading of childrens’ courts is foreseen as a necessity when the new Children’s Bill is implemented – 471 Children’s Courts. The extension of the jurisdiction of Children’s Courts (the present Family Courts and Children’s Courts), will also result in budgetary implications. • The appointment of specialised Children’s Court Magistrates with specific qualifications, as provided for in the original Bill, will have budgetary implications relating to the appointment of magistrates with specific qualifications and specialised attributes. Although there are Commissioners of Child Welfare at each Magistrate’s Court, very few have been trained specifically for childrens’ matters. More magistrates will also be needed for childrens’ courts and the extra tasks allocated to childrens’ courts: • Appointment of specialised Magistrates: at least 1 per court, but after discussions with the Secretary of the Magistrates’ Commission = 50 extra Magistrates (for each Chief Magistrate, large courts and some of the bigger Senior Magistrates’ Offices) which will ensure that at all main centres at least one additional experienced Magistrate will be appointed. Depending on volume of additional work, might have to be increased = R222 354 basic salary plus State’s approximate costs = R250 000 X 50 = R 12 500 000,00. * Training of Magistrates: R250 000,00 per province X 9 = R 2 250 000,00. * Section 62: Lay Forum and mediation by Family Advocate – may have extra costs relating to appointment of more Family Advocates, because at the moment there are only a few Family Advocates in each Region and Family Advocates will be needed for each Children’s Court = 40 existing Family Advocates = 471 – 40 = 431 X R 77 000,00 = R33 187 000,00.

15. Cost implications for SALRC-version of Children’s Courts Chapter continued • Appointment of Childrens’ Court Assistants – there are none appointed at the moment although existing Act makes provision for their appointment. At least 471 X R 77 000,00 = R 36 267 000,00. Section 85 also provided that Minister must appoint Children’s Court Assistants for each Magistrate’s Court, as well as additional Assistants and support staff. • Legal representation for children: Legal Aid for children to be given to children at State’s cost if child or family cannot afford legal representation – extra funds to Legal Aid Board needed. Only an approximate cost of R20 million, can be indicated. • Section 27 also provided that every child has the right to be assisted to bring a matter to court – Children’s Courts Assistants and Legal Aid Board will have to budget for the implementation of this right. Also approximately R20 million per year. • Professional reports ordered by courts at State expense if necessary: R5 million. • Professional orders ordered by court at State expense if necessary: Medical doctor, psychologist, professional person. • Procedural rules need to be drawn up on appropriate questioning techniques: research might be necessary, but no major costs. • Use of suitably qualified or trained interpreters needed: lack of interpreters at Justice: At least 100 X R50 000,00 = R5 000 000,00. • Budget for service of summonses – need to budget extra: R3 million. • Budget for appointment and/or remuneration of NGO Intermediaries: R150,00 per day for one intermediary for 471 courts X 3 approximately = R 211 950,00. • Family Group Conference – Court must appoint suitably qualified person or organisation to facilitate – costs re at least travelling costs will have to be considered: R 2 million. • Assessors have been taken out of the current Bill, so that will have no budgetary implication. • Clause 89 provides that a court may be adjourned only for a period of not more than 30 days at a time – additional courts and additional personnel might be needed. • Tentative total = R139 415 950,00.

16. Key policy issues raised during the Public Hearings • STRUCTURE OF COURTS: • 1. Ms Wybrow advocates the splitting of local, national and inter-country adoptions in the Children's court, Regional court and High court respectively. Ms Lofell of the Children's Bill Working Group argues that with the removal of the regional child and family court, people are unable to access key legal processes needed by the children in their care. • The DoJ has had to align the structure of the Children's Courts with other re-structuring proceeses within the Department. Children's Courts fall within the Family Courts. The Family Court blueprint, in an effort to make family law services more accessible to the public, has retained the family courts at district court level. Ms Lofell's argument is therefore without substance. The most accessible courts are those at district court level. Ms Wybrow's proposal cannot be entertained because of its numerous cost implications. To have three divisions dealing with adoptions in every jurisdictional area will necessitate administrative capacity that the Department cannot afford. The proposal by the Department is that the Children's Court will attend to all adoptions, including inter-country adoptions. The High Court however has inherent jurisdiction to hear all matters and cannot be excluded from any process.

17. Key policy issues raised during the Public Hearings continued • FOSTER CARE GRANTS: • The DoJ has requested the Judiciary to process all applications for foster care grants without delay.A workshop is planned for October this year with Commissioners of Child Welfare to draft guidelines on the efficient processing of foster care grants. We deal with this through the inter-sectoral committee and attend to problem areas as soon as they arise.

18. Key policy issues raised during the Public Hearings continued • INTER-COUNTRY ADOPTIONS: • One of the main issues in contention is whether or not attorneys should be included as accredited agents. Attorneys are professionally qualified and are officers of the court. As such they are bound to a code of conduct and the ethics of the profession. Their contribution in inter-country adoptions will be invaluable to the court. The Central Authority,(which we propose should include DoJ), should put in place checks to ensure that fees and tariffs are regulated- for all professionals working in the field of inter-country adoptions.The risk of trafficking in children is unfortunately a very real risk and it is the responsibility of the Central Authority to ensure that our children are safe. • The DoJ will be co-ordinating a workshop for Commissioners of Child Welfare to draft guidelines for the processing of inter-country adoptions. This was as a result of complaints from the Commissioners of irregular procedures being followed by certain offices. • In the absence of enabling legislation and regulations, the status of the Hague Convention on Inter- Country Adoptions and its procedures are unclear. It is envisaged that the workshop will result in a clear procedure to be followed in facilitating an inter-country adoption. The recommendation by Ms Wybrow of the standard for all adoptions to be raised with oral and affidavit evidence being mandatory, is supported.

19. Key policy issues raised during the Public Hearings continued • Legal representation of Children: • The submission by the Community Law Centre is that the Commissioner of Child Welfare should be compelled to decide whether a child should be assisted to acquire legal assistance. • The Bill actually goes further than this. Section 55 re-inforces the child’s constitutional right to legal representation. • The Department is currently engaged in discussions with the State Attorney and the Legal Aid Board to establish a policy that will ensure that children in civil proceedings be given expert legal representation.

20. Key policy issues raised during the Public Hearings continued • Capacity within the Children’s Court: • The Law Society of South Africa submitted that they would reject implementation of the Bill if the current structures, staff and the office of the Family Advocate remain the same. They also indicated the need for a dedicated Family Court. • The Department is currently engaged in a project to strengthen the pilot Family Courts to make them Blueprint-compliant before the roll-out to other centres. The strengthening project includes process changes and capacity building within the court to ensure better service delivery and customer satisfaction. The Office of the Family Advocate has been upgraded to include Senior Family Advocates at regional level to ensure a better management of the Office of the Family Advocate.

21. Key policy issues raised during the Public Hearings continued • Publication of Children’s Court-proceedings: • The Media Monitoring Project requested that clause 74 of the Children’s Bill should provide clarity on the individual or body endowed with the power to give permission to publish information relating to Children’s Court-proceedings. It was said that the media should not be prevented reporting on Children’s Courts proceedings but should rather be encouraged to report on children in a responsible manner. It was therefore proposed that the Bill should include an additional clause which states that in instances where media reports reveal or may reveal the identity of a child, the report shall demonstrably be in the best interest of the child. • Clause 74 clearly states that a Children’s Court’s or High Court’s permission must be sought in this regard. • The Department does not agree with the recommendation above, as the Criminal Procedure Act already prohibits the publishing of a child’s identity without the Court’s permission. • The Child might be placed into danger or further exploitated and abused and the right forum to decide what is in the best interests of the child, is still the Court, not the media.

22. Progress with Child Justice Bill and issues relating to Children Awaiting Trial and in Prisons * Various issues have been raised regarding Children Awaiting Trial in Prisons; their placement into Places of Safety; and the progress with the Child Justice Bill and cross-reference with the Children’s Bill. * The Department of Social Development is also here today in order to report on the readiness of the provinces to implement the Child Justice Bill and the placement of Children Awaiting Trial into Places of Safety. • A separate briefing will be made to the Portfolio Committee regarding the Child Justice Bill; and a recommendation will be made to the Chair of the Justice Portfolio Committee for a joint sitting for a briefing regarding the Child Justice Bill, separately to the hearings regarding the Children’s Bill. • The Department of Justice has, however, embarked on various initiatives to prioritise the alternative placements, assessment and diversion of Children Awaiting Trial, in order to divert them as much as possible from the mainstream criminal justice system. • The Department is the Chair of the Intersectoral Child Justice Steering Committee, which meets every month in order to monitor the number of children awaiting trial, intervene where necessary, and plan for the implementation of the Child Justice Bill and establishment of One Stop Child Justice Centres. For example, the Department has gone into intensive discussions with the Judiciary, the NPA, Correctional Services, the Probation Officers and the SAPS, in order to prioritise the assessments, placements, diversions and/or hearings of the 123 children awaiting trial in Pretoria prison lately.

23. Progress and main points of Child Justice Bill as introduced: • The Child Justice Bill (the Bill) is one of the Bills which was introduced into Parliament by the previous Minister for Justice and Constitutional Development prior to the April elections and which was revived by this Parliament in June this year by way of a resolution. • The Bill was introduced into Parliament in mid-2002 but could only be dealt with at the beginning of 2003 when the original briefing took place. Thereafter the Committee spent many hours deliberating on the Bill, until September 2004. The Chair of the Justice Portfolio Committee was provided with a revised draft in October last year. • The revised Child Justice Bill and the updated implementation strategy and costing for the various Departments, are at present before the Justice Portfolio Committee • In the meantime, Interim Guidelines for the handling of Children awaiting Trial was put in place; the ISCCJ is continuing to monitiring the situation of Children Awaiting Trial; has supported a Protocol between Education, Correctional Services and Social Development regarding the issue of the education of Children Awaiting Trial and in Prisons; and has supported an Intersectoral Strategy for the Standardisation of Diversion.

24. Progress and main points of Child Justice Bill as introduced: • As mentioned above this Bill was introduced into Parliament in mid 2002 as Bill 49 of 2002. In short, the Bill, as introduced, in broad terms, sought to – • (i) promote crime prevention by dealing appropriately with children (persons below 18 years) when they first come into the criminal justice system; • (ii) protect children charged with less serious offences from the negative effects of courts and prisons; • (iii) promote moral regeneration by bringing families and communities back to the centre of managing the behaviour of children; • (iv) involve victim and communities through an emphasis on ubuntu and restorative justice; ("restorative justice" is defined as "the promotion of reconciliation, restitution and responsibility through the involvement of a child, the child's parent, the child's family members, victims and communities"). • (v) promote the use of programmes that hold children accountable for their actions in ways they understand; • (vi) reduce the number of trials in which children are involved; • (vii) promote the principle that imprisonment of children is a measure of last resort in appropriate cases; • (viii) ensure the safety of the community by retaining a channel for the prosecution, conviction and, in appropriate cases, the imprisonment of children who commit serious or violent offences; and • (ix) provide for an intersectoral monitoring that will allow an active, responsive approach to the management of the child justice system by government.

25. Progress and main points of Child Justice Bill as introduced: • The Bill places a great deal of emphasis on the first 48 hours after a child is arrested for allegedly committing an offence. A number of alternatives to arrest are provided for securing the attendance of a child at court for the preliminary inquiry (eg summons, taking the child home and giving a written warning to appear at a subsequent date). Police officials are enjoined to use one of the alternatives to arrest in all petty offences unless particular reasons exist for not doing so. • Release or detention and placement of child prior to sentence: Whereas the original Bill had provisions contained in various chapters thereof dealing with the release or detention of children and their placement, the adapted Bill contains one chapter, dealing with these aspects at the various stages of the proceedings through which a child can go. The Chapter has been divided into 2 Parts, one dealing with release or detention and the other dealing with placement of the child in the event of the child being detained. The scheme of this chapter can be summarised as follows: • Release or detention: * A police official can release a child in respect of Schedule 1 offences into the care of a parent or appropriate adult prior to the preliminary inquiry, giving the child and parent a written notice to appear at the preliminary inquiry. * A judicial officer presiding at a preliminary inquiry can release a child in respect of Schedule 1 or 2 offences into the care of a parent or appropriate adult or on the child's own recognisances after taking into account a number of factors. * The Bill now relies almost entirely on the provisions in the Criminal Procedure Act dealing with bail when it comes to release on bail and a child can be released on bail if the interests of justice so permit as set out in the Criminal Procedure Act. If the interests of justice so permit then the presiding officer must hold an inquiry into the ability of the child or parent/appropriate adult to pay.

26. Unsentenced Children in Custody in Correctional Services’ facilities:

27. Sentenced Children in Custody

28. Progress with Criminal Law Amendment (Sexual Offences) Bill, 2003 and the proposed Sexual Offenders Register • Some questions were also raised regarding the cross-referencing of the Child Protection Register contained in the Children’s Bill and the Sexual Offenders Register contained in the Sexual Offences Bill. • The Sexual Offences Bill is at the moment before the Justice Portfolio Committee for consideration. • Towards the end of January 2004 the Portfolio Committee resumed its work on the Bill and, based on the consideration of submissions, oral representations and its provisional deliberations on the Bill, the Committee instructed the Department to adapt the Bill for further debate, after which final decisions would be made. The Department submitted a working document (“Working document: 24/02/04”) to the Committee prior to the April 2004 elections that constituted a proposed reworked version of the Bill. • The Department was, among others, instructed to redraft a number of provisions.

29. Progress with Criminal Law Amendment (Sexual Offences) Bill, 2003 and the proposed Sexual Offenders Register • Clause 24, of the introduced Bill, aimed to place an obligation on a person who has been convicted of a sexual offence to disclose that information if he or she applies for employment which will place him or her in a position of authority or care of children. The Department was instructed to delete the relevant provision and to draft proposals creating an administrative register, namely a National Register for Sex Offenders. Two important principles are central to the relevant draft provisions. Firstly, the object of the Register is to have a record of persons who are convicted of, are serving sentences of imprisonment or who have previous convictions for sexual offences against children. The Register will serve as a source of information to potential employers so as to determine whether persons who intend working with children have been convicted for sexual offences against children. The second important principle is that persons who have been convicted of sexual offences against children will be prohibited from working with children. • These provisions also impose a duty on people who employ persons to look after children by ensuring that prospective employees do not feature in the register. Failure to do so is punishable. These provisions are intended to be a first working draft to facilitate further discussion by the Committee on the issue. • It is recommended that joint discussions between the Portfolio Committees on Justice and Social Development, may be recommended, in order to differentiate clearly between the Sexual Offenders Register contained in the Sexual Offences Bill and the Child Protection Register contained in the Children’s Bill.

30. National Policy Framework • Regarding the proposed National Policy Framework contained in the Criminal Law Amendment (Sexual Offences) Bill, 2003, the draft provisions (clauses 38 to 41) dealing with the development of a National Policy Framework is intended to place an obligation on Government to develop a policy framework within which a uniformed and co-ordinated approach by all Government departments in dealing with sexual offence matters is ensured. Provision will also be made for the establishment of an Inter-sectoral Committee which will be responsible for— • * the implementation of the priorities and strategies contained in the national policy framework; • * measuring progress on the achievement of the national objectives; • * ensuring the different organs of state comply with the primary and supporting roles and responsibilities allocated to them in terms of the national policy framework; and • * monitoring the implementation of the Act. • The Department of Justice and Constitutional Development has already constituted an Intersectoral Steering Committee for the implementation planning and costing of the Sexual Offences Bill. • The Department recommends that intersectoral committees already existing for the implementation of crucial legislation, such as the Children’s Bill Steering Committee under the Chair of the Department of Social Development, report regularly on the implementation strategies and costing of such Bills • * As may concerns were raised in this regard, it is recommended that a reduced and simplified version of the National Policy Framework be considered by the Portfolio Committee, giving the Minister for Social Development in consultation with the Cabinet-members responsible for the other Government Departments, such as Justice and Constitutional Development, SAPS, Health, Education and National Treasury, the responsibility of implementing the legislation, including a policyframework.

31. CONCLUSION • We are all working for the best interests of all our children and the realisation of their rights! • The Department wishes to assure you of our support and co-operation in regard to the Children’s Bill ……………………………………….. Any Questions • Thank you!

32. Contact persons: • Adv P A du Rand, Chief Director: Court Services/ Programme Manager: Specialised Services and Promotion of the Rights of Vulnerable Groups, tel: 012 315 1219; fax: 012 315 1888; e-mail: mgarnettbennett@justice.gov.za; • Mrs C S Kok, Project Manager: Children’s Courts and Sexual Offences Courts, tel: 012 315 1259; fax: 012 315 1851; e-mail: ckok@justice.gov.za.