existing services to children: children’s courts

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 SERVICESDEPARTMENT OF JUSTICE AND

CONSTITUTIONAL DEVELOPMENT

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Existing Services to Children: Existing Services to Children: Children’s CourtsChildren’s Courts

Children’s CourtsChildren’s Courts: : they are therethey are there to protect neglected, abused and to protect neglected, abused and exploited children and remove them from abusive situations – all exploited children and remove them from abusive situations – all magistrates’ courts are children’s courts.magistrates’ courts are children’s courts.

Infrastructure:Infrastructure: Proposed Children’s Courts in Children’s Bill, will stay the same.Proposed Children’s Courts in Children’s Bill, will stay the same. Number of Childrens’ Court-matters handled in 2002 per province, is Number of Childrens’ Court-matters handled in 2002 per province, is

as indicated. Statistics for 2003, are still being compiled.as indicated. Statistics for 2003, are still being compiled.

Family Court CentresFamily Court Centres: : These centres focus on dealing with family These centres focus on dealing with family matters in a specific way: all family-related courts are in one centre so matters in a specific way: all family-related courts are in one centre so that an appropriate court environment and necessary support services can that an appropriate court environment and necessary support services can be provided. Divorce Courts, Maintenance Courts, Domestic Violence and be provided. Divorce Courts, Maintenance Courts, Domestic Violence and Children’s Courts are part of the Family Court Centres. There are five main 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 at the moment and the concept is being rolled-out to other centres during this financial cycle. centres during this financial cycle.

Child Justice/ Juvenile CourtsChild Justice/ Juvenile Courts: : have as aimhave as aim to divert children in trouble to divert children in trouble with the law, as much as possible from the mainstream criminal justice with the law, as much as possible from the mainstream criminal justice system. system. One Stop Child Justice CentresOne Stop Child Justice Centres are in the process of being are in the process of being established, of which there are three (3) at the moment.established, of which there are three (3) at the moment.

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Children’s Courts-matters Children’s Courts-matters handled in 2002handled in 2002

Province

CHILD WELFARE 8.1 8.2 8.3 8.4 8.5

Adoptions dealt with

Other inquiries dealt with

Contribution order

inquiries

Children found in need of

care

Children placed in foster

careEastern Cape 358 3161 348 2086 5101Free State 128 2302 60 2356 2626Gauteng 1294 7174 911 3723 4861Kwazulu Natal 1942 8454 442 9082 11413Limpopo 444 1553 970 3305 2823Mpumalanga 200 801 103 849 756Northern Cape 115 759 112 158 1327North West 162 850 145 1275 1521Western Cape 639 3278 202 1603 2391Total 5282 28332 3293 24437 32819

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DISTRIBUTION OF DISTRICT COURTS(by province) (total = 718)

Mpumalanga (73)10%

KwaZulu-Natal (107)15%

Northern Province (83)12% Western Cape (82)

11%

Free State (80)11%

North West (64)9%

Gauteng (60)8%

Northern Cape (51)7%

Eastern Cape (118)17%

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Existing services to Existing services to children in Children’s children in Children’s

Courts:Courts: Human resources at national, provincial and Human resources at national, provincial and

local levels:local levels: All Magistrates are Commissioners of Child All Magistrates are Commissioners of Child

Welfare (presiding officers in Children’s Courts);Welfare (presiding officers in Children’s Courts); Clerks of the Court act as Children’s Court Clerks.Clerks of the Court act as Children’s Court Clerks.

Material resources at national, provincial and Material resources at national, provincial and local levels:local levels: All Magistrates’ Courts have Children’s Courts, All Magistrates’ Courts have Children’s Courts,

which are held as far as possible, in rooms which which are held as far as possible, in rooms which are not ordinarily used for criminal court-cases.are not ordinarily used for criminal court-cases.

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Challenges and gaps:Challenges and gaps: Children’s Courts Assistants:Children’s Courts Assistants:

Children’s Court Assistants (paralegals/ social workers in Children’s Court Assistants (paralegals/ social workers in Children’s Courts) have been envisaged as far back as Children’s Courts) have been envisaged as far back as 1998, but the Department of Social Development has never 1998, but the Department of Social Development has never had funds to fund such extra posts/ appointments.had funds to fund such extra posts/ appointments.

There is a big need for the appointment of Children’s Courts There is a big need for the appointment of Children’s Courts Assistants as a separate postclass in Children’s Courts, in Assistants as a separate postclass in Children’s Courts, in order to assist Magistrates with the workload in this regard. order to assist Magistrates with the workload in this regard. The Department of Justice and Constitutional Development The Department of Justice and Constitutional Development is now considering recommending such extra posts, but is now considering recommending such extra posts, but there is currently a lack of budget in this regard. there is currently a lack of budget in this regard. Cabinet Cabinet further requested that all such major cost-drivers be further requested that all such major cost-drivers be taken out of the original Bill, as otherwise the taken out of the original Bill, as otherwise the provisions might be non-implementable.provisions might be non-implementable.

The present Children’s Court Clerks will be trained, The present Children’s Court Clerks will be trained, developed and more administrative staff will be appointed developed and more administrative staff will be appointed in phases as funds become available in this regard.in phases as funds become available in this regard.

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Challenges and gaps:Challenges and gaps: Reviewing of Courts Structure: Reviewing of Courts Structure:

The rationalisation of the Courts Structure The rationalisation of the Courts Structure under the Chair of the President of the under the Chair of the President of the Constitutional Court, is well under way. A Constitutional Court, is well under way. A Superior Courts Bill is at present before the Superior Courts Bill is at present before the Justice Portfolio Committee in order to align the Justice Portfolio Committee in order to align the High Courts’ jurisdiction with the Constitution High Courts’ jurisdiction with the Constitution and the present provinces.and the present provinces.

The rationalisation of the lower courts is as a The rationalisation of the lower courts is as a next step also receiving attention.next step also receiving attention.

The rolling out of Re Aga Boswa and the Family The rolling out of Re Aga Boswa and the Family Courts Project, are receiving priority attention.Courts Project, are receiving priority attention.

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Addressing challenges through Addressing challenges through the Children’s Bill:the Children’s Bill:

Regarding the availability of Children’s Courts in rural areas, all Regarding the availability of Children’s Courts in rural areas, all 471 Magistrates’ Courts are Children’s Courts and therefore we do 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 not have to wait for the roll-out of the Family Courts Project or the finalisation of the restructuring process of the courts.finalisation of the restructuring process of the courts.

The Children’s Bill will give wider powers to the Children’s Courts in The Children’s Bill will give wider powers to the Children’s Courts in order to protect children from abuse, neglect and exploitation.order to protect children from abuse, neglect and exploitation.

However, the High Court still has inherent jurisdiction to act as However, the High Court still has inherent jurisdiction to act as Upper Guardian of all Children.Upper Guardian of all Children.

The Department together with Justice College and the Lower Court The Department together with Justice College and the Lower Court Judiciary, will assist with empowering Children’s Courts through the Judiciary, will assist with empowering Children’s Courts through the training of the presiding officers and administrative personnel; and training of the presiding officers and administrative personnel; and provide extra resources to such Children’s Courts, such as child-provide extra resources to such Children’s Courts, such as child-friendly waiting rooms, intermediaries, etc. where possiblefriendly waiting rooms, intermediaries, etc. where possible

The Department will request National Treasury for extra funds for The Department will request National Treasury for extra funds for the appointment of Children’s Courts Clerks/ Officers in order to the appointment of Children’s Courts Clerks/ Officers in order to strengthen the courts. However, this will have to be phased in, strengthen the courts. However, this will have to be phased in, because if one paralegal costs R77 000, 471 will cost = R36 267 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 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 will mean a need for an extra R3 850 000 for the first year of implementation.implementation.

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Cost implications:Cost implications: What is available:What is available:

The Department has funds for the implementation of The Department has funds for the implementation of legislation for this financial year for R10 million – this includes legislation for this financial year for R10 million – this includes all Vulnerable Groups, including Equality Courts.all Vulnerable Groups, including Equality Courts.

The Department further has funds for the implementation of The Department further has funds for the implementation of the Family Courts for R16 million for this financial year.the Family Courts for R16 million for this financial year.

What is needed:What is needed: Preliminary costing for implementation of current version of Preliminary costing for implementation of current version of

the Children’s Courts Chapter of the Children’s Bill: R15 million, the Children’s Courts Chapter of the Children’s Bill: R15 million, because Department plans on implementing in phases and has because Department plans on implementing in phases and has made provision in other Projects for some funding, for made provision in other Projects for some funding, for example, the appointment of contract intermediaries and the example, the appointment of contract intermediaries and the extension of the services of the Family Advocate to Family extension of the services of the Family Advocate to Family Courts.Courts.

Preliminary costing for implementation of the S A Law Reform Preliminary costing for implementation of the S A Law Reform Commission Bill: R139 415 950 (please see attached slide)Commission Bill: R139 415 950 (please see attached slide)

Gaps:Gaps: Extra funding has been requested from National Treasury for Extra funding has been requested from National Treasury for

the MTEC-period for the next three financial years.the MTEC-period for the next three financial years.

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Tentative costing on SALRC-version of Children’s Tentative costing on SALRC-version of Children’s Courts ChapterCourts Chapter

Current Childrens’ Courts will continue. However, existing infrastructure Current Childrens’ Courts will continue. However, existing infrastructure leaves much to be desired and the upgrading of childrens’ courts is foreseen 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 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 Courts. The extension of the jurisdiction of Children’s Courts (the present Family Courts and Children’s Courts), will also result in budgetary Family Courts and Children’s Courts), will also result in budgetary implications. implications.

The appointment of specialised Children’s Court Magistrates with specific The appointment of specialised Children’s Court Magistrates with specific qualifications, as provided for in the original Bill, will have budgetary qualifications, as provided for in the original Bill, will have budgetary implications relating to the appointment of magistrates with specific implications relating to the appointment of magistrates with specific qualifications and specialised attributes. Although there are Commissioners qualifications and specialised attributes. Although there are Commissioners of Child Welfare at each Magistrate’s Court, very few have been trained of Child Welfare at each Magistrate’s Court, very few have been trained specifically for childrens’ matters. More magistrates will also be needed for specifically for childrens’ matters. More magistrates will also be needed for childrens’ courts and the extra tasks allocated to childrens’ courts:childrens’ courts and the extra tasks allocated to childrens’ courts:

Appointment of specialised Magistrates: at least 1 per court, but after Appointment of specialised Magistrates: at least 1 per court, but after discussions with the Secretary of the Magistrates’ Commission = 50 extra discussions with the Secretary of the Magistrates’ Commission = 50 extra Magistrates (for each Chief Magistrate, large courts and some of the bigger 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 Senior Magistrates’ Offices) which will ensure that at all main centres at least one additional experienced Magistrate will be appointed. Depending on one additional experienced Magistrate will be appointed. Depending on volume of additional work, might have to be increased = R222 354 basic 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. 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. 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 Section 62: Lay Forum and mediation by Family Advocate – may have

extra costs relating to appointment of more Family Advocates, because at extra costs relating to appointment of more Family Advocates, because at the moment there are only a few Family Advocates in each Region and 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 will be needed for each Children’s Court = 40 existing Family Advocates = 471 – 40 = 431 X R 77 000,00 = R33 187 000,00. Family Advocates = 471 – 40 = 431 X R 77 000,00 = R33 187 000,00.

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Cost implications for SALRC-version of Cost implications for SALRC-version of Children’s Courts Chapter continuedChildren’s Courts Chapter continued

Appointment of Childrens’ Court Assistants – there are none appointed at the moment 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 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 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.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 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. 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. 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 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 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.implementation of this right. Also approximately R20 million per year.

Professional reports ordered by courts at State expense if necessary: R5 million. Professional reports ordered by courts at State expense if necessary: R5 million. Professional orders ordered by court at State expense if necessary: Medical doctor, Professional orders ordered by court at State expense if necessary: Medical doctor,

psychologist, professional person.psychologist, professional person. Procedural rules need to be drawn up on appropriate questioning techniques: research might Procedural rules need to be drawn up on appropriate questioning techniques: research might

be necessary, but no major costs.be necessary, but no major costs. Use of suitably qualified or trained interpreters needed: lack of interpreters at Justice: At Use of suitably qualified or trained interpreters needed: lack of interpreters at Justice: At

least 100 X R50 000,00 = R5 000 000,00.least 100 X R50 000,00 = R5 000 000,00. Budget for service of summonses – need to budget extra: R3 million.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 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.one intermediary for 471 courts X 3 approximately = R 211 950,00. Family Group Conference – Court must appoint suitably qualified person or organisation to 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.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.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 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. at a time – additional courts and additional personnel might be needed.

Tentative total = R139 415 950,00.Tentative total = R139 415 950,00.

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Key policy issues raised during Key policy issues raised during the Public Hearingsthe 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.

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Key policy issues raised during Key policy issues raised during the Public Hearings continuedthe Public Hearings continued

FOSTER CARE GRANTS:FOSTER CARE GRANTS:

The DoJ has requested the Judiciary to process The DoJ has requested the Judiciary to process all applications for foster care grants without all applications for foster care grants without delay.A workshop is planned for October this delay.A workshop is planned for October this year with Commissioners of Child Welfare to year with Commissioners of Child Welfare to draft guidelines on the efficient processing of draft guidelines on the efficient processing of foster care grants. We deal with this through foster care grants. We deal with this through the inter-sectoral committee and attend to the inter-sectoral committee and attend to problem areas as soon as they arise.problem areas as soon as they arise.

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INTER-COUNTRY ADOPTIONS:INTER-COUNTRY ADOPTIONS:

One of the main issues in contention is whether or not attorneys One of the main issues in contention is whether or not attorneys should be included as accredited agents. Attorneys are professionally should be included as accredited agents. Attorneys are professionally qualified and are officers of the court. As such they are bound to a 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 code of conduct and the ethics of the profession. Their contribution in inter-country adoptions will be invaluable to the court. The Central inter-country adoptions will be invaluable to the court. The Central Authority,(which we propose should include DoJ), should put in place Authority,(which we propose should include DoJ), should put in place checks to ensure that fees and tariffs are regulated- for all checks to ensure that fees and tariffs are regulated- for all professionals working in the field of inter-country adoptions.The risk 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 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 responsibility of the Central Authority to ensure that our children are safe. safe.

The DoJ will be co-ordinating a workshop for Commissioners of Child The DoJ will be co-ordinating a workshop for Commissioners of Child Welfare to draft guidelines for the processing of inter-country Welfare to draft guidelines for the processing of inter-country adoptions. This was as a result of complaints from the Commissioners adoptions. This was as a result of complaints from the Commissioners of irregular procedures being followed by certain offices. of irregular procedures being followed by certain offices.

In the absence of enabling legislation and regulations, the status of In the absence of enabling legislation and regulations, the status of the Hague Convention on Inter- Country Adoptions and its procedures the Hague Convention on Inter- Country Adoptions and its procedures are unclear. It is envisaged that the workshop will result in a clear are unclear. It is envisaged that the workshop will result in a clear procedure to be followed in facilitating an inter-country adoption. The procedure to be followed in facilitating an inter-country adoption. The recommendation by Ms Wybrow of the standard for all adoptions to recommendation by Ms Wybrow of the standard for all adoptions to be raised with oral and affidavit evidence being mandatory, is be raised with oral and affidavit evidence being mandatory, is supported.supported.

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Legal representation of Children:Legal representation of Children: The submission by the Community Law Centre is The submission by the Community Law Centre is

that the Commissioner of Child Welfare should that the Commissioner of Child Welfare should be compelled to decide whether a child should be compelled to decide whether a child should be assisted to acquire legal assistance. be assisted to acquire legal assistance.

The Bill actually goes further than this. Section The Bill actually goes further than this. Section 55 re-inforces the child’s constitutional right to 55 re-inforces the child’s constitutional right to legal representation. legal representation.

The Department is currently engaged in The Department is currently engaged in discussions with the State Attorney and the discussions with the State Attorney and the Legal Aid Board to establish a policy that will Legal Aid Board to establish a policy that will ensure that children in civil proceedings be given ensure that children in civil proceedings be given expert legal representationexpert legal representation..

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Capacity within the Children’s Court:Capacity within the Children’s Court: The Law Society of South Africa submitted that they would The Law Society of South Africa submitted that they would

reject implementation of the Bill if the current structures, reject implementation of the Bill if the current structures, staff and the office of the Family Advocate remain the staff and the office of the Family Advocate remain the same. They also indicated the need for a dedicated Family same. They also indicated the need for a dedicated Family Court. Court.

The Department is currently engaged in a project to The Department is currently engaged in a project to strengthen the pilot Family Courts to make them Blueprint-strengthen the pilot Family Courts to make them Blueprint-compliant before the roll-out to other centres. The compliant before the roll-out to other centres. The strengthening project includes process changes and strengthening project includes process changes and capacity building within the court to ensure better service capacity building within the court to ensure better service delivery and customer satisfaction. The Office of the Family delivery and customer satisfaction. The Office of the Family Advocate has been upgraded to include Senior Family Advocate has been upgraded to include Senior Family Advocates at regional level to ensure a better management Advocates at regional level to ensure a better management of the Office of the Family Advocate.of the Office of the Family Advocate.

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Publication of Children’s Court-proceedings:Publication of Children’s Court-proceedings: The Media Monitoring Project requested that clause 74 of the The Media Monitoring Project requested that clause 74 of the

Children’s Bill should provide clarity on the individual or body Children’s Bill should provide clarity on the individual or body endowed with the power to give permission to publish information endowed with the power to give permission to publish information relating to Children’s Court-proceedings. It was said that the media relating to Children’s Court-proceedings. It was said that the media should not be prevented reporting on Children’s Courts should not be prevented reporting on Children’s Courts proceedings but should rather be encouraged to report on children proceedings but should rather be encouraged to report on children in a responsible manner. It was therefore proposed that the Bill in a responsible manner. It was therefore proposed that the Bill should include an additional clause which states that in instances should include an additional clause which states that in instances where media reports reveal or may reveal the identity of a child, where media reports reveal or may reveal the identity of a child, the report shall demonstrably be in the best interest of the 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 Clause 74 clearly states that a Children’s Court’s or High Court’s permission must be sought in this regard.permission must be sought in this regard.

The Department does not agree with the recommendation above, The Department does not agree with the recommendation above, as the Criminal Procedure Act already prohibits the publishing of a as the Criminal Procedure Act already prohibits the publishing of a child’s identity without the Court’s permission.child’s identity without the Court’s permission.

The Child might be placed into danger or further exploitated and The Child might be placed into danger or further exploitated and abused and the right forum to decide what is in the best interests abused and the right forum to decide what is in the best interests of the child, is still the Court, not the media. of the child, is still the Court, not the media.

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Progress with Child Justice Bill and issues Progress with Child Justice Bill and issues relating to Children Awaiting Trial and in relating to Children Awaiting Trial and in

PrisonsPrisons* * Various issues have been raised regarding Children Awaiting Trial 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 their placement into Places of Safety; and the progress with the Child Justice Bill and cross-reference with the Children’s Bill.Justice Bill and cross-reference with the Children’s Bill.

* The Department of Social Development is also here today in order to report * 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 on the readiness of the provinces to implement the Child Justice Bill and the placement of Children Awaiting Trial into Places of Safety.the placement of Children Awaiting Trial into Places of Safety.

• A separate briefing will be made to the Portfolio Committee regarding the 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 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 Justice Portfolio Committee for a joint sitting for a briefing regarding the Child Justice Bill, separately to the hearings regarding the Children’s Bill.Child Justice Bill, separately to the hearings regarding the Children’s Bill.

• The Department of Justice has, however, embarked on various initiatives to The Department of Justice has, however, embarked on various initiatives to prioritise the alternative placements, assessment and diversion of Children prioritise the alternative placements, assessment and diversion of Children Awaiting Trial, in order to divert them as much as possible from the Awaiting Trial, in order to divert them as much as possible from the mainstream criminal justice system.mainstream criminal justice system.

• The Department is the Chair of the Intersectoral Child Justice Steering The Department is the Chair of the Intersectoral Child Justice Steering Committee, which meets every month in order to monitor the number of Committee, which meets every month in order to monitor the number of children awaiting trial, intervene where necessary, and plan for the children awaiting trial, intervene where necessary, and plan for the implementation of the Child Justice Bill and establishment of One Stop implementation of the Child Justice Bill and establishment of One Stop Child Justice Centres. For example, the Department has gone into intensive Child Justice Centres. For example, the Department has gone into intensive discussions with the Judiciary, the NPA, Correctional Services, the Probation discussions with the Judiciary, the NPA, Correctional Services, the Probation Officers and the SAPS, in order to prioritise the assessments, placements, Officers and the SAPS, in order to prioritise the assessments, placements, diversions and/or hearings of the 123 children awaiting trial in Pretoria diversions and/or hearings of the 123 children awaiting trial in Pretoria prison lately.prison lately.

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Progress and main points of Progress and main points of Child Justice Bill as introduced:Child Justice Bill as introduced:

The Child Justice Bill (the Bill) is one of the Bills which was 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 into Parliament by the previous Minister for Justice and Constitutional Development prior to the April elections and which was revived by Development prior to the April elections and which was revived by this Parliament in June this year by way of a resolution.this Parliament in June this year by way of a resolution.

The Bill was introduced into Parliament in mid-2002 but could only be 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 dealt with at the beginning of 2003 when the original briefing took place. Thereafter the Committee spent many hours deliberating on place. Thereafter the Committee spent many hours deliberating on the Bill, until September 2004. The Chair of the Justice Portfolio the Bill, until September 2004. The Chair of the Justice Portfolio Committee was provided with a revised draft in October last year.Committee was provided with a revised draft in October last year.

The revised Child Justice Bill and the updated implementation The revised Child Justice Bill and the updated implementation strategy and costing for the various Departments, are at present strategy and costing for the various Departments, are at present before the Justice Portfolio Committee before the Justice Portfolio Committee

In the meantime, Interim Guidelines for the handling of Children In the meantime, Interim Guidelines for the handling of Children awaiting Trial was put in place; the ISCCJ is continuing to monitiring awaiting Trial was put in place; the ISCCJ is continuing to monitiring the situation of Children Awaiting Trial; has supported a Protocol the situation of Children Awaiting Trial; has supported a Protocol between Education, Correctional Services and Social Development between Education, Correctional Services and Social Development regarding the issue of the education of Children Awaiting Trial and in regarding the issue of the education of Children Awaiting Trial and in Prisons; and has supported an Intersectoral Strategy for the Prisons; and has supported an Intersectoral Strategy for the Standardisation of Diversion.Standardisation of Diversion.

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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.

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The Bill places a great deal of emphasis on the first 48 hours after a child is 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 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 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 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 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 one of the alternatives to arrest in all petty offences unless particular reasons exist for not doing so. exist for not doing so.

Release or detention and placement of child prior to sentence:Release or detention and placement of child prior to sentence: Whereas the Whereas the original Bill had provisions contained in various chapters thereof dealing with original Bill had provisions contained in various chapters thereof dealing with the release or detention of children and their placement, the adapted Bill 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 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 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 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 placement of the child in the event of the child being detained. The scheme of this chapter can be summarised as follows:of this chapter can be summarised as follows:

Release or detention:Release or detention:** A police official can release a child in respect of Schedule 1 offences into the care of 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 a parent or appropriate adult prior to the preliminary inquiry, giving the child and parent a written notice to appear at the preliminary inquiry.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 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 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.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 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 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 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 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. the ability of the child or parent/appropriate adult to pay.

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

UNSENTENCED CHILDREN IN CUSTODY BY THE END OF MAY 2004

AGE

RSA 7 - 13 Years 14 Years 15 Years 16 Years 17 Years TOTAL

EASTERN CAPE REGION 0 23 49 107 164 343

GAUTENG REGION 0 7 40 133 206 386

KWAZULU/NATAL REGION 4 43 99 190 222 558

LIMPOPO, MPUMALANGA & NORTH WEST REGION 0 1 3 24 38 66

NORTHERN CAPE & FREE STATE REGION 0 2 19 75 83 179

WESTERN CAPE REGION 0 9 59 105 156 329

TOTAL 0 85 269 634 869 1857

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Sentenced Children in Sentenced Children in CustodyCustody

SENTENCED CHILDREN IN CUSTODY BY THE END OF MAY 2004

AGE

RSA 7 - 13 Years 14 Years 15 Years 16 Years 17 Years TOTAL

EASTERN CAPE REGION 0 4 18 70 176 268

GAUTENG REGION 3 6 40 84 194 327

KWAZULU/NATAL REGION 2 9 34 73 196 314

LIMPOPO, MPUMALANGA & NORTH WEST REGION 1 3 19 60 156 239

NORTHERN CAPE & FREE STATE REGION 1 2 21 42 107 173

WESTERN CAPE REGION 0 7 32 100 277 416

TOTAL 7 31 164 429 1106 1737

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Progress with Criminal Law Amendment (Sexual Progress with Criminal Law Amendment (Sexual Offences) Bill, 2003 and the proposed Sexual Offences) Bill, 2003 and the proposed Sexual

Offenders RegisterOffenders Register Some questions were also raised regarding the cross-Some questions were also raised regarding the cross-

referencing of the Child Protection Register contained in the referencing of the Child Protection Register contained in the Children’s Bill and the Sexual Offenders Register contained in Children’s Bill and the Sexual Offenders Register contained in the Sexual Offences Bill.the Sexual Offences Bill.

The Sexual Offences Bill is at the moment before the Justice The Sexual Offences Bill is at the moment before the Justice Portfolio Committee for consideration.Portfolio Committee for consideration.

Towards the end of January 2004 the Portfolio Committee Towards the end of January 2004 the Portfolio Committee resumed its work on the Bill and, based on the consideration resumed its work on the Bill and, based on the consideration of submissions, oral representations and its provisional of submissions, oral representations and its provisional deliberations on the Bill, the Committee instructed the deliberations on the Bill, the Committee instructed the Department to adapt the Bill for further debate, after which Department to adapt the Bill for further debate, after which final decisions would be made. The Department submitted a final decisions would be made. The Department submitted a working document (“Working document: 24/02/04”) to the working document (“Working document: 24/02/04”) to the Committee prior to the April 2004 elections that constituted a Committee prior to the April 2004 elections that constituted a proposed reworked version of the Bill.proposed reworked version of the Bill.

The Department was, among others, instructed to The Department was, among others, instructed to redraftredraft a a number of provisions. number of provisions.

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Progress with Criminal Law Amendment (Sexual Progress with Criminal Law Amendment (Sexual Offences) Bill, 2003 and the proposed Sexual Offences) Bill, 2003 and the proposed Sexual

Offenders RegisterOffenders 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.

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National Policy FrameworkNational Policy Framework Regarding the proposed National Policy Framework contained in the Criminal Regarding the proposed National Policy Framework contained in the Criminal

Law Amendment (Sexual Offences) Bill, 2003, Law Amendment (Sexual Offences) Bill, 2003, the draft provisions (clauses 38 the draft provisions (clauses 38 to 41) dealing with the development of a to 41) dealing with the development of a National Policy FrameworkNational Policy Framework is is intended to place an obligation on Government to develop a policy framework intended to place an obligation on Government to develop a policy framework within which a uniformed and co-ordinated approach by all Government within which a uniformed and co-ordinated approach by all Government departments in dealing with sexual offence matters is ensured. Provision will departments in dealing with sexual offence matters is ensured. Provision will also be made for the establishment of an also be made for the establishment of an Inter-sectoral CommitteeInter-sectoral Committee which will which will be responsible for—be responsible for—

** the implementation of the priorities and strategies contained in the the implementation of the priorities and strategies contained in the national policy framework;national policy framework;

** measuring progress on the achievement of the national objectives;measuring progress on the achievement of the national objectives; ** ensuring the different organs of state comply with the primary and ensuring the different organs of state comply with the primary and

supporting roles and responsibilities allocated to them in terms of the national supporting roles and responsibilities allocated to them in terms of the national policy framework; andpolicy framework; and

** monitoring the implementation of the Act.monitoring the implementation of the Act. The Department of Justice and Constitutional Development has already The Department of Justice and Constitutional Development has already

constituted an Intersectoral Steering Committee for the implementation constituted an Intersectoral Steering Committee for the implementation planning and costing of the Sexual Offences Bill.planning and costing of the Sexual Offences Bill.

The Department recommends that intersectoral committees already existing The Department recommends that intersectoral committees already existing for the implementation of crucial legislation, such as the Children’s Bill Steering for the implementation of crucial legislation, such as the Children’s Bill Steering Committee under the Chair of the Department of Social Development, report Committee under the Chair of the Department of Social Development, report regularly on the implementation strategies and costing of such Billsregularly on the implementation strategies and costing of such Bills

** As may concerns were raised in this regard, it is recommended that a As may concerns were raised in this regard, it is recommended that a reduced and simplified version of the National Policy Framework be considered reduced and simplified version of the National Policy Framework be considered by the Portfolio Committee, giving the Minister for Social Development in by the Portfolio Committee, giving the Minister for Social Development in consultation with the Cabinet-members responsible for the other Government consultation with the Cabinet-members responsible for the other Government Departments, such as Justice and Constitutional Development, SAPS, Health, Departments, such as Justice and Constitutional Development, SAPS, Health, Education and National Treasury, the responsibility of implementing the Education and National Treasury, the responsibility of implementing the legislation, including a policylegislation, including a policy framework.framework.

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CONCLUSIONCONCLUSION We are all working for the best interests of all our We are all working for the best interests of all our

children and the realisation of their rights! children and the realisation of their rights!

The Department wishes to assure The Department wishes to assure you of our support and co-operation you of our support and co-operation in regard to the Children’s Billin regard to the Children’s Bill

……………………………………………………………………………….... Any QuestionsAny Questions

Thank you!Thank you!

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Contact persons:Contact persons: Adv P A du Rand, Chief Director: Court Services/ Adv P A du Rand, Chief Director: Court Services/

Programme Manager: Specialised Services and Programme Manager: Specialised Services and Promotion of the Rights of Vulnerable Groups, tel: Promotion of the Rights of Vulnerable Groups, tel: 012 315 1219; fax: 012 315 1888; e-mail: 012 315 1219; fax: 012 315 1888; e-mail: [email protected]@justice.gov.za;;

Mrs C S Kok, Project Manager: Children’s Courts Mrs C S Kok, Project Manager: Children’s Courts and Sexual Offences Courts, tel: 012 315 1259; and Sexual Offences Courts, tel: 012 315 1259; fax: 012 315 1851; e-mail: fax: 012 315 1851; e-mail: [email protected]@justice.gov.za..

mailto:[email protected]

mailto:[email protected]

existing services to children: children’s courts

Documents

childrens courtsmatters

proposed childrens courts

childrens courts chapter

magistrates courts

courts structure

specialised courts

maintenance courts

divorce courts