I would like, on your behalf, to welcome the newly appointed Lay Magistrates. Following an open and transparent, and extremely rigorous, selection procedure163 emerged victorious from more than 5000 original applicants. The majority of new appointees took part in an intensive training programme which ran through January, February, March and April.  Appointments became effective on April 1. Those unable to complete their training, will be afforded the opportunity later this year. As I was involved in the training I had the good fortune to meet them and was most impressed by the enthusiasm and the professionalism with which they were approaching their new role. I feel confident in saying that the cream has truly come to the top!

Some of my more cynical colleagues have been saying that they don’t know what they are letting themselves in for and that there is likely to be a high attrition rate. One might normally expect a fall-out rate of some 4% in the first year. I would not anticipate the figure to exceed that. Perhaps we can lower that figure. What I want to do in this editorial is to let them know what they are letting themselves in for.

When we sit in the Youth Court or in the Family Proceedings Court we are charged with finding solutions to the problems facing our most vulnerable and troubled children. We are charged with keeping children safe, restoring families, finding permanency for children, and holding youth, families, and service providers accountable. Every day decisions are made regarding children in crisis. We decide whether a child should be removed from parental care, whether a child has committed a delinquent act and what the consequences should be. When parenting fails, when informal community responses are inadequate, our Youth and Family Courts provide the state’s official intervention in the most serious cases involving children and families. We might be described as providing the legal equivalent to an emergency room in the medical profession. We intervene in crises and figure out the best response on a case-by-case, individualized basis.

The decisions we take can mean a child being restored to his/her family once adequate support structures have been put in place. Where that is not possible the child may find a permanent home with a family member. Sometimes Trusts move too quickly down the care road – perhaps with a view to adoption - without considering what support structures might be put in place to enable the family to stay together or without seeking family members who might be able to help. This was recently highlighted by the Court of Appeal in the case of AR v HomeFirst Community Trust (16.02.05) which I will summarise for you later in this magazine.

Trusts are sometimes too quick at placing children in residential care, or foster care with a view to adoption perhaps because resources are not available or because adoption would allow them to close the file. Social workers would probably argue that they have no choice. But perhaps they have not identified the choices which are available.

In the AR v Homefirst Community Trust case the Appeal Court criticised the Trust’s decision not to allow the mother to undergo residential assessment, despite the fact that a consultant psychiatrist and a psychiatric nurse, both of whom had been working with the mother for some time, would have been optimistic about the outcome.

Children belong in families, preferably their own families. Children’s Homes or detention centres are seldom the best choice for a child.  Social science and child development expertise have demonstrated that congregate care is developmentally inappropriate and often harmful to children.  The extent to which the Trust attempted to find a family member to care for the child in the case above is unclear.

It has been estimated that everyone has at least 75 living relatives. With the use of modern technology it should be possible to trace family members. More effort should be made to find extended family members and let them know that one of their relatives, a child, a member of their family, needs them. This search is worth the effort. Just because one or both parents is a hopeless alcoholic or drug addict, or in jail, we should not assume that other family members are either unavailable or unfit. Sometimes extended family can be found close by and would be willing to offer help if they could be assured of the support of social services.

This search for relatives should start immediately. Your training will have covered Emergency Protection Orders – and you may await your first special court to deal with such an application with some apprehension. As soon as an EPO has been granted the search for extended family support should begin. Inputting greater resources in this area should ease the demand for foster care places.

I would not want you to misunderstand what I am saying. I am not arguing that a child must stay with his/her family come what may. Regrettably there are times when removal is the only option. There are wonderful foster and adoptive parents out there who can provide the care that is missing from the child’s life and enable him/her to live normal lives. What I am saying is that the first choice should be to maintain the family unit. This may be achievable with more in-home support. Failing that our second choice should be to identify a members of the extended family who can fill the breach. At times more effort could be made to find a member of the extended family who is willing to help.

In the above case the Trust argued that permanency was in the child’s best interest. That is accepted. Pressure from the Trust to have the case dealt with promptly was accepted by both the Family Proceedings Court and the High Court.

Article 3 (2) of the Children (Northern Ireland) Order 1995 stresses the need to avoid delay in making an order. However, prompt decisions are not always the best course. In the case of  C v Solihull MBC [1993] 1 FLR 290 Ward J said:

“… delay is ordinarily inimicable to the welfare of the child, but … planned and purposeful delay may well be beneficial. A delay of a final decision for the purpose of ascertaining the result of an assessment is proper delay and is to be encouraged.”

When I spoke to you during training I stressed the importance of making your views known to your two colleagues on the Bench – particularly if you disagree with them. In the event of disagreement the majority decision will be the decision of the court. If you feel strongly that your view is the right one you can insist on your dissent being noted. And remember that just because you are in the minority does not mean that you are wrong! In the AR v Homefirst Community Trust the Court of Appeal noted that  the dissenting opinion was that the mother should receive more contact than was being proposed. The Court of Appeal agreed that more contact should have been given.

It is sometimes difficult to see the impact one is making while sitting in the Youth Court or in the Family Proceedings Court. The Family Proceedings Court can be particularly difficult as we continually rise to allow solicitors time to hammer out deals between warring parents over contact or whatever. As you sit in Chambers sipping your coffee, feeling bored and wonder why you got yourself into this try to remember that the outcome of this case may make an immense difference to this particular child(ren) and to his/her future wellbeing.

Each day cases are heard one by one. Although a single case will obviously make an immense difference for a particular family, it may not seem significant to you in the overall scheme of things.  Yet these cases in aggregate will make a great difference to our whole society.

At times you may bristle with indignation at the hatred parents demonstrate for one another and at their apparent disregard for the child(ren). Try to remember that the reason for the animosity is that the outcome is significant to them. It is in the best interests of the child(ren) that differences are resolved amicably. This is an outcome worth waiting for.

The child before you may be a baby or a teenager. Cases in the Family Proceedings Court may involve abuse or neglect, children in need of supervision, parental contact. Those in the Youth Court will deal with young offenders. Because you do not sit every day you may find yourself sitting at the beginning, the middle or the end of the case. Some cases will only be “for mention” to review whether things are going according to plan – a Guardian ad Litem has been engaged, a psychiatrist has been identified and has agreed to prepare a report or whatever. Such cases may only take a few minutes. Others may be much more serious: whether a child is to be removed from his/her parent’s home, whether a youth will be placed in secure accommodation, whether a young offender should receive a custodial or community disposition.

It is easy to feel detached from cases when one does not see them through. I would ask you to remember that this is the law in action. The Bench must determine what intervention is necessary on behalf of a child in crisis. That determination can have long-term consequences for the child and the family.

Society at large tends to have a distorted picture of what happens in our Youth Courts and Family Proceedings Courts. We seem to read only about the tragedies - the children who are killed by their parents or who are lost in foster care or who commit terrible crimes. These sensational news accounts are utterly misleading. Yes, tragedies do happen, but the real news, the good news, is that the Youth Courts and the Family Proceedings Courts do have a positive impact in the lives of our most troubled and troublesome children. The media is not interested in reporting the good news but you will know. You are having an impact.

When children first come to the attention of the court, they have been beaten, neglected, traumatized, unloved, and are in need of a stable, loving family. Parents come before the court as alcoholics, as drug addicted, as victims or perpetrators of violence, with few or no parenting skills, with mental health and maturity challenges, and without support systems. We may make an Interim Order to place children in safe, temporary homes, preferably with relatives, while the parents start the difficult process of reconstructing their lives. They may undergo parenting assessment, attend drug or alcohol addiction clinics, go on anger-management courses to deal with issues of domestic violence or perhaps get treatment for mental health problems.

A series of Interim Orders may be made with the court reviewing the progress of the parents and children at subsequent hearings. Successful outcomes should mean the family being reunited – perhaps with a Supervision Order.

Judge Leonard Edwards of Santa Clara, California, has promoted a system of “Wraparound Care” which has proved successful and has resulted in better outcomes for children. Wraparound services take an ecological approach to the care and safety of a child. The services are developed by a team of professionals, relatives and community members who work together to create an individualized 24-hour plan of supervision while the child lives with a family in the community. Judge Edwards has accepted an invitation to come to Belfast to outline the programme at the next World Congress of the IAYFJM (August 27-September 01 2006).

Working with young people in crises can be emotionally draining. Work in the Family Proceedings Court can be particularly difficult. Uplifting moments may be few and far between but are essential to enable magistrates to continue their work. Happy endings are few and far between. But we do on occasion get requests to discharge a Care Order. Such happy occasions can help to counteract the many disappointments.

One of the frustrations of sitting on the Bench is that we do not always get feedback and know little of how the case is proceeding. There is no greater joy than seeing a family successfully reunited, to see a parent turn his or her life around, to gain self-esteem, to proudly walk into court with the confidence that she has become a competent parent, to see a child happily accompanying her parent. Even in the cases in which the parents are unsuccessful, the Bench can take satisfaction from knowing they have assisted in building a new family through the fostering or adoption processes.

I hope that I have convinced you that the work of the Youth Court and of the Family Proceedings Court is important and that to serve as a Lay Magistrate is to make a significant contribution to children and families in crisis and to the entire community. I would not have stuck around all these years if I had not thought I was making a contribution.

Willie McCarney, Editor

A tsunami of human solidarity swept across the surface of the globe in response to the physical tsunami that ravaged the shores of the Indian Ocean. The tragedy in the Indian Ocean defies description and depiction. Heartrending stories and shocking images brought the world together in a communal sense of grief. Every day brought a staggering upward estimate of deaths - and of aid donations. Worldwide public aid pledges are now over $4bn in what has become the biggest humanitarian relief operation in history.

The generosity of the ordinary people is a mark of the connectedness of the world in which we live, whose far reaches are more familiar to us than to any previous generation. The tools of the modern media mean that the connectedness can be expressed with an immediacy that would seem extraordinary a few short years ago, allowing us to witness what the first reporters on the scene were able to see and share an immediate sense of global grief.

Underpinning the material act of giving, whether in cash, kind or work, is a mental phenomenon. It has been called moral globalisation. Increasingly, citizens of rich countries identify with people far away and see themselves as having some moral obligation towards them. Probably the response to the Asian tsunami would not have been so generous had it not hit western holidaymakers taking their Christmas sun on the shores of the Indian Ocean. But the fact that more and more people do travel to more and more places, thanks to cut-price air travel, is itself an engine of this moral globalisation. And those who don’t travel still see the suffering close-up, on the front pages of their newspapers and on television, where they can watch it 24 hours a day, seven days a week.

The generosity of spirit of ordinary people around the world caught our leaders by surprise as they struggled to find an appropriate response to a crisis of this size. Tony Blair originally promised £1 million while George Bush offered $15 million – one third of what he spent on his inauguration. By the time they got to Jakarta there was an element of competition between countries with the world’s leaders leapfrogging over each other with new, ever larger contributions.

One obvious question arises. Why must the relief of suffering, in this unprecedentedly prosperous world, rely on the whims of citizens and the appeals of pop stars and comedians? Why, when extreme poverty could be made history with a minor redeployment of public finances, must the poor world still wait for ordinary people in the rich world to empty their pockets?

The obvious answer is that governments have other priorities. And the one that leaps to mind is war. If the money they have promised to the victims of the tsunami still falls far short of the amounts required, it is partly because the contingency fund upon which they draw in times of crisis has been spent in Iraq.

The US government pledged $350m to the victims of the tsunami, and the UK government £50m ($96m). The US has spent $148 billion on the Iraq war and the UK £6bn ($11.5bn). The war has been running for 656 days. This means that the money pledged for the tsunami disaster by the United States is the equivalent of one and a half day’s spending in Iraq. The money the UK has given equates to five and a half days of involvement in the war.

The United States gives just over $16bn in foreign aid to developing nations annually. However, $8.9bn of the aid money is used for military assistance, anti-drugs operations, counter-terrorism and the Iraq relief and reconstruction fund. The aid budgets to South America were cut to pay for the reconstruction of Iraq!

Kofi Annan asked in Jakarta for new money to finance the tsunami appeal, and pleaded with donor nations not to rob Peter to pay Paul.

What will be left when the tsunami of international solidarity has subsided and the generous peoples of the developed world revert to their old ways, in a warm afterglow of moral self-satisfaction - broken promises, as with so many previous headline pledges? hasty half-measures of disaster relief, not properly followed through with projects of long-term reconstruction? countless orphans – already the target of criminal gangs?

Speaking at the Jakarta summit Kofi Annan praised the pledges made by the world’s governments but pleaded that they should be honoured and quickly translated into readily available funds. “We also need more people and more material to get to those most in need, often in remote areas,” he said. “We have a duty to the survivors ... to treat the wounded, to prevent further suffering as a result of polluted drinking water, destroyed infrastructure, lack of food, clothing and shelter. [We must] stop the tsunami from being followed by a second wave of death, this time from preventable causes. And in the longer term, to prevent a third wave of despair, where people cannot recover their livelihoods, homes or communities.”

It is important at this early stage in a very long haul to ensure that promises made are translated into concrete commitments - a lesson of previous emergencies such as the earthquake that destroyed the ancient Iranian city of Bam last year. Verbal pledges formalised in Jakarta must be followed up relentlessly. Every world leader, state and international body signed up to the millennium development goals - to halve poverty, provide universal primary education and cut infant mortality by two-thirds, all by 2015. Few have taken steps to meet those goals.

The Indian Ocean disaster broke many records: it produced the largest relief operation in history, the biggest ever forensic effort to identify victims, and it looks likely to set new benchmarks for the cost of emergency and reconstruction aid, as well as for donations from governments and individuals across the globe. Clearly it is what happens next that truly matters.

What have we learned from this tragedy? Perhaps the most important lesson to be learned is that rich countries deal much better with catastrophes such as tsunamis.

Casualties were by far the highest in three impoverished areas – the coasts of eastern Sri Lanka, the southern tip of India and the northern tip of Sumatra in Indonesia. These countries did not have early warning systems in place simply because wave stations are very expensive and there was no money to buy them.

Poor countries are much more vulnerable, not just to tsunamis but also to most other natural disasters. The two biggest killers worldwide are hurricanes and earthquakes. In 1992 hurricane Andrew left 42 people dead in Florida with damage amounting to 10% of Florida’s gross domestic product. In 1998 a hurricane of similar force, hurricane Mitch, struck Honduras leaving 10,000 people dead with damage amounting to two thirds of the GDP. The Los Angeles earthquake of 1994 left 60 people dead. A less powerful earthquake in Bam, Iran, in 2003 left 25,000 dead and thousands more homeless. The difference lies in the rich world’s use of seismic-resistant engineering, whereas developing nations often use cheap mud bricks that topple like a house of cards in an earthquake.

The best protection against catastrophes is a society that is rich enough to be well-prepared for all sorts of contingencies. The question now is should Asian countries invest in wave stations and an elaborate alert system making them better able to deal with the next tsunami?

Firstly we should bear in mind that disasters on this scale are uncommon.

In the early morning of November 1, 1755, there was an earthquake under Lisbon (Portugal) which killed a third of the city’s population of 275,000.

The eruption in Tambora, Indonesia, in 1815, was the biggest volcanic eruption in recorded history and killed more than 100,000 people. Volcanic ash in the atmosphere lowered global temperatures by some 3C and deprived Europe of a summer in 1816 because the sun was blocked out. The poem Darkness, by the British poet Lord Byron, a fantasy about the extinction of the sun, was inspired by Tambora and the lost summer of 1816. It is also believed that Tambora was in Mary Shelly’s mind when she wrote “Frankenstein” in 1818 – a warning that we would be destroyed by our own technological arrogance.

On the 27^th August 1883 the island of Krakatoa, 11 cubic miles of it, was blasted into oblivion in one of the planet’s most titanic volcanic displays. Most of the world back then knew about Krakatoa, just as almost everyone now knows of the recent Sumatra tragedy. Krakatoa was the first catastrophe of the age of communication. When President Lincoln was assassinated in 1865 it took twelve days for the news to get from Washington to London. When Krakatoa erupted the combination of morse code, the Reuter news agency and the submarine telegraph cable meant that the Boston Globe had the story on its front page just four hours later.

The explosion in Krakatoa was so loud that it was heard 3,000 miles away, the tides rose as far away as Biarritz and Devonport, the evening skies all over the world burned with a lurid fire. Edvard Munch’s vividly coloured painting, The Scream, was painted at the time of those Krakatoa-affected skies.

On April 18 1906, San Francisco was levelled by an enormous earthquake. The physical consequences of the event were profound and immediate: death, destruction, appeals, aid, promises of better building codes, more funds for science.

At least 100,000 people died in the Kanto earthquake, Japan, of 1923.

Everyone agrees that a large number of deaths could have been prevented if an early warning system had been in place around the Indian Ocean. Is this the time to install one? The last tsunami of this size struck here in 1883. Are there not more pressing concerns?

While the death toll in the most recent tsunami was horrific – 300,000 and rising – we should note that every year 3 million people die in south-east Asia from infectious and parasitic diseases – most curable with cheaply available medicines. In this area alone, more people died of preventable diseases in the two weeks following the tsunami than died as a result of it.

Worldwide, 30,000 children under 5 die each day from preventable diseases.

Malaria alone kills 750,000 children in Africa every year. People ask how can God allow such suffering. That is the wrong question. Instead, we should be asking a question we can actually answer: how can human beings allow a mosquito to cause millions of deaths? Nets which might protect these children cost about £1 each - a child’s life for less than the cost of a cup of coffee in Starbucks.

The most good could be achieved by directing resources towards the elimination of disease, hunger and polluted water. The aim should be to build richer societies with better infrastructures to withstand the many different challenges of the 21^st Century.

Water shortages would be a thing of the past if desalination plants could come down in price in the way other technology products have. Energy may be scarce in the coastal regions, yet there is an abundance of wave, solar and wind power waiting to be harnessed if the resources were available.

Technology is only part of the answer. As Friends of the Earth have pointed out, barriers such as mangrove forests and coral reefs could have saved lives by deflecting the force of the Asian tsunami. The organisation claims that areas that were naturally protected suffered less than those that were not. While most Asian countries have strong environmental protection laws governing costal development and protecting costal forests these are widely ignored by the powerful tourist and aquaculture industries which have rapidly encroached onto beaches and cleared the inter-tidal areas to provide better views, wider beaches or an environment in which shrimps and prawns can thrive. The full fury and wrath of the waves were felt in areas where nature’s green belts of coral reefs and mangroves no longer exist. Regenerating the mangrove forests would offer protection against future tsunamis.

The potential to help the poorest countries of the world is not being realized. What is required now is inspired leadership from the international community. The developed countries are still too protectionist. Western tariffs and farm subsidies reduce the export earnings of developing countries by $39 billion a year, 50% more than they receive in aid. And, all too often, the imbalance in expertise and resources works to the disadvantage of poor countries when it comes to enforcing the rules which exist.

Reforming the way overseas aid is delivered, promoting free enterprise and encouraging freer, fairer trade, could help lift millions of people out of poverty.

The first and most pressing issue is debt relief. Tsunami-affected countries collectively owe the rich world in excess of $300bn.

In 2004, manmade disasters prised nations and religions apart as dead children from Beslan to Baghdad, supplied proof of human viciousness. Then, as a year of terror came to a close, nature revealed its destructive power.

2005 is a year that has started with the hope of human progress. What the tsunami and its aftermath have done is to crash through the entrenched self-interest of western nations. Billions of human beings across the globe have identified with the terrible tragedies of human beings just like themselves.

The suffering reminds us of that most basic connection of one human being to another; how, for all the differences of wealth, geography, race, status, we share so much. The essentials of life are always the same - water to drink, food to eat, love, grief and death.

Humbled first by the power of nature, we have since been humbled by the power of humanity, the awesome power of nature to destroy, the extraordinary power of human compassion to build anew.

This moment of global solidarity, evident in the flood of donations, has inspired a hope that this could prove a turning point - a kairos in the relationship between the west and the developing world.

People have signalled a universal empathy not just with the survivors of the tsunami but with the poor and the marginalized around the world. We can only hope that the tsunami of December 26, 2004 will be to the war on want what the terrorist attacks of September 11, 2001, were to the war on terror.

“Well, do you think I just woke up one day and thought ‘I know, I’ll be a rent boy today.’? Thousands of things have happened to me to get me here – mum leaving, no-one at home, hanging round the pub late and waiting to go home with dad, having blokes try to touch us up, seeing boys do tricks and getting cash and fags. If you want to change me, you’re probably going to have to do thousands of things too, to balance it out.” (Barnardo’s – No son of mine! 2001)

These are the words of a 14 year old boy who was abused through prostitution, but they could be the words of any child in this situation.

Beyond the Shadows is a Barnardo’s service based in Belfast, Northern Ireland. It has been developed specifically to protect children just like this boy by fighting against the sexual exploitation of children and young people. For this service the sexual exploitation of children and young people encompasses abuse through prostitution, trafficking and abuse via the internet. Experience has shown that these three elements are inextricably linked.

Abuse through prostitution:

A Barnardo’s definition for abuse through prostitution is “any involvement of a child or young person below 18 years in sexual activity for which remuneration of cash or kind is given to the child or young person or a third person or persons. The perpetrator will have power over the child by virtue of one or more of the following: age, emotional maturity, gender, physical strength or intellect.” (This remuneration could be money, it could be drugs or it could be a new pair of trainers or anything else for the child. If a third person is exploiting the child it will usually be for financial gain).

In Beyond the Shadows we challenge many of the myths surrounding children and young people who are abused in this way; these include the myth that many of them are deserving of their plight. Some of these children may be involved in some form of criminal or anti-social activity and will already be labelled by society as “no better than they ought to be”. There is the belief that many of these young people choose to be involved in this lifestyle. These children and young people rarely make an informed choice to do this. For most there will be factors stemming from early childhood, combined with unmet emotional, social or physical needs, which leave them open to exploitation by manipulative, predatory adults who are only too ready to take control of them.

Prevalence

Since the inception of Beyond the Shadows it has become apparent that the abuse of children through prostitution is not easily visible; hence, little is known about the scale of the problem. One of the greatest difficulties is the hidden, clandestine nature of this activity, and it is therefore difficult for any agency to gain much more than anecdotal information. Many believe that if the problem is not visible on our streets it is not happening; this must be challenged. Research shows that many young people, in particular young girls, are kept out of view, in flats, houses and bed-sits belonging to adults who wish to control them for this purpose. For this reason a pro-active strategic response based on a philosophy and practice of inter-agency working is required to protect our children and young people. We know that these children are unlikely to report this type of abuse for various reasons: they may not recognise it as abuse or dangerous, particularly if they have experienced some form of abuse in their early childhood; because of a culture of fear and silence; some may be involved in criminal or anti-social activity and will not want to draw attention to themselves; for some, at some point in time, the rewards, e.g. money or drugs, may appear to outweigh any risks. We must actively seek out these children and young people to protect them while the police must actively investigate and prosecute those who abuse and exploit them.

Trafficking:

The UN Protocol, 2000, definition of trafficking of people is:

“The recruitment, transportation, transfer, harbouring or receipt of persons by the use of threat, force, coercion, abduction. Abusing power for payment and control in order to exploit”.

Beyond the Shadows service is considering how children are trafficked and is addressing this on three levels: on an international basis, for example, from Eastern European countries to Great Britain and then to the North or South of Ireland; from Great Britain, for example, by boat from Scotland to Belfast; and on a very local level within Northern Ireland, for example, by bus or taxi to various areas. The current level of funding and staffing within this service prevents a more focused approach to this issue at present, other than the gathering of information.

Abuse via the Internet

Billy says: “The internet is evil – it keeps your pictures for the rest of your life. Now I’ll never escape….I’ll never know who’s seen those pictures. I felt sick, betrayed, dirty and terrified that someone would recognise me. This is going to with me for the rest of my life. I can never escape that film – the thought of it makes me feel sick”. (Barnardo’s – Stolen Childhood, 2002).

These are the words of a 15 year old boy who discovered that a film had been taken of him while he was sexually abused. Many children report that their experience of sexual abuse is damaging, but the fact that it was recorded in some way, either by filming or photography, adds to this damage. Once these images are taken they have absolutely no control over who sees them, and for these children it is abuse time and time again.

Some of the young people, and indeed the adults who have contacted Beyond the Shadows to speak of their experiences of exploitation as children, have reported the fact that the abuse was filmed. This fact may haunt them for years to come.

Barnardo’s, as a UK wide organisation, has worked with a number of children who have downloaded abusive images of other children. We need to be asking how these children come to do this. Although some do purposely download these images, others are coerced to do so by peer pressure, while some have been introduced to these sites by predatory adults, often as part of the grooming process for sexual abuse. Beyond the Shadows will take action to detect if children or young people are advertised locally on the internet for the purposes of being sold for sex.

The law

Concern about the abuse and exploitation of girls and young women through prostitution is by no means a new phenomenon. Indeed, the raising of the age of consent for heterosexual intercourse from 13 to 17 in Northern Ireland and 16 in the rest of the UK, was a direct result of a public outcry about the involvement of children in prostitution in the 1880s. It is therefore ironic that today, these children and young people are amongst those least likely to be afforded protection by the very legislation which our Victorian fore bearers championed on their behalf.

It would appear that an adult can easily justify his/her abuse of a child in this way because he/she is paying for it. How can one say that a child of nine, or indeed any age, is making their own decision to sell sex? A child cannot consent to have sex, and therefore, has to be considered as a sexually abused child not a “child prostitute”.

Terminology is very significant in how we discuss and deal with these children and those who abuse and exploit them, and how we affect policy and legislative change. This triangle illustrates the commonly accepted view of this situation:

As stated earlier, this is a child who is being abused. Any person who has sex with a child is a child sex offender and a person who exploits a child for this purpose is an abusing adult.

The recent changes to the sex offences legislation have addressed a number of issues on the sexual exploitation of children. This includes a range of new offences of buying and selling children for sex. However, this will only be effective if law enforcement agencies are proactive in investigating and prosecuting adults who coerce, exploit and abuse these children and young people.

Barnardo’s is currently lobbying for child protection to become a priority within the Policing Plan in Northern Ireland. We accept that it is currently not a priority because the public have been consulted on the Policing Plan and have stated the types of crime they view as the priorities – child protection is not one of these. While the tackling of other crimes is important I would emphasise that, until we as a society recognise and accept the abuse of children as more important than the abuse of property, we will continue to fail to adequately protect our children.

It is the view of Beyond the Shadows that sentencing in relation to all three components of sexual exploitation needs to be strengthened.

How are children/young people sexually exploited?

The ways in which children and young people are sexually exploited are very complex and our understanding of how it happens continues to develop. Many of these children will have experienced disruption in their early lives, such as family breakdown/instability, neglect, domestic violence, physical or sexual abuse. As a result they may experience problems with schooling, self-esteem, relationships. Poverty and disadvantage are significant background factors in the lives of many of these children.

The pre-disposing factors to boys and girls being abused through prostitution are broadly similar. Those who sexually abuse both in this way are mainly heterosexual men. Girls, however, appear more likely than boys to be controlled by an abusing adult. Although traditional ‘pimping’ is less common for boys, there have been occasions when ‘pimping’ has been identified, for example, by being targeted and then sold for sex by an abusing adult; boys being attracted to certain residences and groomed into abusive lifestyles by adult men; or boys being conditioned into this lifestyle from a very young age.

Drugs are often introduced as a means of control by abusing adults, and may continue to be used as a coping mechanism by young people to block out the pain with which they have to cope.

Who are the abusers?

As a result of collaboration between Beyond the Shadows and BBC Northern Ireland in 2004, a young woman, interviewed for the purpose of highlighting the problem locally, stated “as one punter put it, they liked a piece of fresh meat”. She stated that, during the three years of her abuse on the streets, many men asked if she could get younger girls for them. She reported that men from all walks of life, including different professions, had sexual contact with her when she was between the ages of 13 and 16.

Our experience shows that, while the majority of people who are exploiting and abusing children in this way may be men, it has been confirmed that women are also very much involved as the coercers and abusers. This is a fact that is even more abhorrent to society and one which makes it even more difficult for children to tell.

Action research undertaken by Beyond the Shadows 2002 has concluded that there are at least four categories in terms of those responsible for sexually exploiting children and young people:

1: Children exploited by their own families

Parents and other family members have been prosecuted for aiding, abetting and procuring their own children for sexual abuse by others. Where this is happening the children may have been subject to this from a very young age.

2: Children exploited by an older male (often the ‘boyfriend’).

In these situations men target young girls, using engagement, entrapment and control to get them to have sex with their “friends” or other men and they may have more than one girl whom they are exploiting at any one time.

3: Organised exploitation of children (often by criminals).

There is anecdotal information to suggest that individuals with criminal or paramilitary connections have been involved in organised prostitution for a number of years.

4: Children involved in self-organised activity without adult coercion.

Our service stresses a word of caution when explaining this category. While it may appear that some children or young people are involved in this without adult coercion, we would suggest that cognisance is taken of those pre-disposing factors surrounding many of these children. Experience has also shown that, even where a young person may have decided to take this route alone, there is often a predator only too ready to take control of them.

What is Beyond the Shadows doing to combat the sexual exploitation of children and young people?

This service has been developing since 2002. Its aims are:

Awareness raising: - with children/young people; their families/carers; agencies/staff working with children/young people; elected representatives; and the general public.

Information gathering: - to identify and offer safety to children/young people under threat of exploitation through the gathering of information about them, those who are exploiting and abusing them, where it is occurring and what forms of abuse are taking place.

Prevention: - through education, the sharing of information, identifying and offering safety to children at risk of this, and lobbying for changes to policy and legislation.

Protection: - to address which protective services are needed to support children and young people who are victims of exploitation in order that they can be given protection, support and exit strategies. To assist relevant statutory and voluntary agencies to exercise best practice and develop policy frameworks.

The service works with male and females between the ages of 12 and 18 years (21 if in receipt of leaving and aftercare services). This will include a direct counselling service, education on health and sexual matters, advice, support and advocacy. It will also involve signposting young people on to other relevant agencies, depending on their individual needs. It is apparent that children below the age of 12 are abused and exploited in this way, often involving their own families. For this reason Beyond the Shadows will collate information on these younger victims.

Barnardo’s strives to achieve these aims through a multi-agency approach and is involved in a specific partnership with the Eastern Health and Social Services Board and the Police Service of Northern Ireland. Working collaboratively we will seek to realise the vision of Beyond the Shadows which is that the lives of all our children and young people will be free from sexual exploitation.

Introduction: Julia Sloth-Neilson

Africa’s problems and difficulties are legion. They include poverty, lack of employment opportunities, lack of infrastructure and resources, high debt loads, war and armed conflicts, large numbers of displaced peoples, the scourge of HIV/Aids, and growing lawlessness in some parts of the continent as traditional social structures dissipate in the wake of urbanisation. Specifically as regards children, the HIV/Aids pandemic has resulted in ever growing numbers of orphans, many of whom have become street children, who need to commit offences in order to survive. The intention of this book is not, however, to detail the nature and intensity of Africa’s problems. Rather the project was conceived as a way of focusing on solutions, on examples of best practice in the emerging transformation of the child justice processes and policies that are sweeping the continent.

From Nigeria to Kenya, from South Africa to Uganda, novel initiatives to implement the letter and spirit of the children’s rights agenda within the sphere of children in trouble with the law have mushroomed in the immediate past. As Africans, we can learn much from sharing positive experiences, particularly where solutions are premised on local rather than imported knowledge and practice. Common problems can be addressed, useful ideas replicated, borrowed good practice adapted and traditional and culturally appropriate heritage fostered; and all this within the context of the limited resources available on this continent. As Celia Petty and Maggie Brown assert:

[In] view of the depth of cultural, economic and institutional differences it is questionable how much African States and other developing countries can learn from theory and practice evolved in the North.

Purposes Of This Publication

The renewed interest in children’s rights, child justice and penal reform in Africa generally – and in South Africa in particular – can be directly linked to the desire to infuse criminal justice reform with a child-rights approach. Derived from the need to ensure the implementation of the Convention on the Rights of the Child at the domestic level, the starting point for many countries (South Africa included) was the absence of a separate system to deal with the special needs of children in conflict with the law. In South Africa, the formal process of law reform and, coupled with that, a variety of institutional improvements (see, for example, chapter 12, Probation Officers as Role players^[1]), was launched shortly after the democratic dispensation ended apartheid in 1994 and, with that, the country’s isolation from the United Nations community. Ratification of international treaties soon followed and, with the involvement of the South African Law Reform Commission, new legislation was prepared over a period of some years.

Similar law reform processes are underway in a number of African countries, such as Malawi, Lesotho and Namibia. Mozambique, too, is intending to embark on the drafting of dedicated child rights legislation. There has been a notable crossover of ideas, based on site visits, student liaison, and networking between non-governmental organisations involved in both policy making and service delivery in the child justice field – to name but a few areas of recent collaboration. This sharing and collaboration can itself be regarded as best practice – the similarity of contexts in the African environment makes it easier to replicate ideas and programmes that have worked well elsewhere in our region. The recent establishment of a networking consortium on child justice in East Africa is yet another exciting development designed to facilitate the deepening specialisation and expertise amongst the various role players involved in this field.

As the Committee on the Rights of the Child has pointed out on numerous occasions, legislative provisions can go only some of the way towards creating child-friendly processes and procedures. The ultimate test is whether the intentions of legislatures find actual expression in the practice and delivery of appropriate services to children. It is because the application of laws and policies at grassroots level can be of more importance to the protection of the rights of children in conflict with the law than the actual formal legal provisions themselves that the Community Law Centre’s Children’s Rights Project embarked upon this study. Its main aim was to investigate, identify and profile best practices to supplement law reform initiatives, to promote replication and to inspire stakeholders across government and non-governmental sectors to engage in institutional improvements. It was with these objectives in mind that the selection of areas for inclusion in this publication was made. Topics relate chiefly to programme delivery, to the expansion of services to children and to embedding human rights practice in criminal justice processes. Law simply provides the regulatory framework.

As the chapters in this publication show, discretion and human choices can be exercised at many points of the criminal procedure – from the arrest of a child by the police, to decisions about trial and detention, until the conclusion of proceedings, sentencing (or the determination of another outcome). In most countries, South Africa included, many of these choices are already built into existing law and practice in one form or another. An additional intention of this publication is, therefore, to inspire the more creative and participative exercise of discretion by role-players coming into contact with children in trouble with the law, to the benefit of the children they serve.

Best Practice

The themes selected for consideration in the ensuing chapters cannot be regarded as exhaustive of all issues falling within the child justice context. They have been selected for their relevance across a broad range of regions and contexts, both urban and rural. They traverse situations where there is access to resources, training and personnel, as well as contexts where resources are in short supply. They span an extensive spectrum of issues common to child justice systems in the developing world. The criteria for the inclusion of the selected examples highlighted in the text were based on the following principles:

Whether the example or practice gives particular expression to international standards and instruments

Whether the practice is efficient and effective

Whether the practice or example can be replicated in similar situations or in diverse contexts

Whether an evaluation or analysis of the project or practice has been conducted

Whether vulnerable or marginalised groups or minorities are targeted

Whether the example indicates a trend which improves access to justice or streamlines the delivery of justice-related services

Whether the example furthers the implementation of children’s rights in a specific context

Background To This Study

The work reflected in the following chapters is based on a variety of research methodologies. First, desktop audits of existing materials were undertaken, including internet-based publications and conference reports. This aspect of the research focused beyond the borders of South Africa and included previously published material, especially excerpts derived from the journal Article 40, a dedicated intersectoral publication produced quarterly by the Community Law Centre since 1999. Article 40 concentrates on good practice developments, and provides an ideal source of material for inclusion in a more permanent volume such as this.

Second, many of the researchers undertook field trips, first within the various geographical areas of South Africa and, additionally, further afield to countries like Zambia, Nigeria, Ghana, Kenya and Uganda. These countries are experiencing transitions similar to that in South Africa and, within the child justice sector, there is a drive to Africanise responses to vulnerable children as well as to create opportunities for shared learning in African contexts. Finally, international best practice and theoretical material has not been ignored in the preparation of this volume, particularly as criminal justice processes were, in the past, based on European and British models, and professional developments continue to be influenced by the prevailing international standards.

Conclusion

The authors hope that this volume will guide further improvements in practice and speed up transformation of child justice systems at local level. It is not intended as the final word on the good management and delivery of services to children in trouble with the law. Rather it attempts to review the current state of the practice of child justice in Africa, with particular reference to South Africa.

Chapter One

The International Framework

Julia S l o t h - Nielsen

The primary instrument guiding the development of child justice is the United Nations Convention on the Rights of the Child (1989), which gives substantial guidance to countries seeking to enhance the delivery of children’s rights-based services and programmes. The Convention is seen as the overarching framework for a child rights approach. It contains an elaborate set of guidelines for maintaining human rights standards in child justice systems and for the administration of child justice itself. This means that countries are obliged to give effect to its provisions – by means of laws, policies and practices designed to further the Convention’s goals.

The implementation of the Convention is overseen by the Committee on the Rights of the Child, a body of international experts chosen in such a way as to represent a variety of geographical, linguistic and religious communities. The Committee receives reports from States that have ratified the Convention, detailing the progress they have made towards implementing its various provisions. The Committee’s representatives have recently been increased from a body of ten to a body of 18 members, due to the burdensome workload experienced. In recent times, the Committee has embarked on the practice of issuing ‘General Comments’ in relation to themed issues, to expand upon the approach that should be followed by States.

Guiding Principles Of The Convention

Best interests of the child

First and foremost, the UN Convention is premised on the ‘best interests of the child’ principle as a primary consideration in all matters concerning children. This principle guides the application of all other principles of the Convention, including those relevant to child justice. Its application is not limited to decisions made by courts of law: the best interests of the child must be broadly applied to administrative decisions, policy formulation, diversion measures and so forth.

Non – discrimination

Next, the principle of non-discrimination is regarded as being central. Children should not be discriminated against on a wide variety of grounds, including gender, ethnic or social origin, race, disability or any other status. Again this principle underpins approaches to all the other rights enshrined in the Convention, and so applies in the child justice field as well.

Child participation

Third, children’s right to participate in matters affecting their interests is regarded as an innovative way of recognising that children are individual bearers of human rights and not mere objects of concern or recipients of welfare. Article 12 of the Convention provides as follows:

1 States parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2 For this purpose, the child shall, in particular, be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

This provision has obvious relevance to child justice in that, insofar as judicial proceedings are concerned, children must be given the chance to participate in all decisions and, when in court, should preferably enjoy competent legal representation.

The right to survival and development

The last founding principle in terms of which the Convention’s rights must be applied is the right to survival and development. This principle concerns itself broadly with children’s wellbeing, including their rights to health, welfare and social services, recreation and leisure, protection from violence and harm and so forth. It is a principle with broad application in the child justice sphere, especially where children have been deprived of their liberty. Children deprived of their liberty are notoriously vulnerable to threats to their physical and psychological wellbeing: conditions in detention facilities frequently do not meet the minimum standards required by other guiding international instruments such as the Standard Minimum Rules for Children Deprived of their Liberty, approved by the United Nations in 1990. In addition to the above general principles, which apply to all the rights detailed in the Convention, two substantial articles deal with the specifics of child justice. These are articles 37 and 40 of the Convention, which are considered in the next two sections of this chapter.

Cruel, inhuman or degrading treatment or punishment

Article 37(a) of the Convention requires that States Parties ensure that:

No child shall be subjected to torture or other cruel inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without the possibility of release shall be imposed for offences committed by persons below eighteen years of age.

This provision has found expression in a number of best practice developments in Africa. For instance, corporal punishment as a sentence for young offenders was ruled contrary to the constitutions of both South Africa and Zambia in 1995 and 1999 respectively. In the Zambian case of John Banda v The People (HPA/6/1998), the court ruled that:

This sentence of corporal punishment cannot be sustained as it is inhuman, degrading and barbaric in nature…Article 15 of the Constitution is couched in very clear and unambiguous language, that no person shall be subjected to torture or to inhuman degrading punishment or other like treatment.

The sentence of whipping was abolished as a punishment in Namibia, and is not a competent sentence under the Kenyan Children Act (passed in 2002), nor under the Ugandan Children’s Act of 1996. In 1995, it was abolished as a sentence by the Constitutional Court in South Africa in the well known case of S v Williams.

Life imprisonment without the possibility of parole offends against the principle that children should be deprived of their liberty for the shortest period of time only (see the discussion of Article 37(b) below). A sentence from which a child will never be released cannot be regarded as detention for the shortest period of time, as it offers no opportunity to reconsider whether continued imprisonment is necessary. Similarly, a life sentence without parole does not take account of the possibilities of reintegrating the child into society once the goals of the sentence have been achieved. The South African courts have gone so far as to hold that, even where the release on parole for a person serving a life sentence is a possibility, such sentences should not be imposed unless it can be shown at the time of sentencing a youthful offender that there are exceptional circumstances: in other words, that there are no reasonable prospects of eventual rehabilitation. In effect, since it is impossible to predict at the time of sentencing whether the rehabilitation of a child may occur over an extended period of time, this statement can be regarded as posing a significant barrier to the sentence of life imprisonment for children.

As regards the shielding of children against illtreatment generally, examples of practices and policies designed to afford protection abound. Two signal developments that illustrate this are experiences with monitoring the treatment of children in detention in various settings. The child-friendly court project in Lusaka, Zambia, began improving conditions of treatment for children in police cells by appointing dedicated police officials to see to children’s needs. In addition, the cells at the police stations were renovated to provide protection from the elements and blankets were acquired. Specialised training on children’s rights in Zambia is to be mainstreamed into the routine training programme at the Police Academy, and manuals to encourage knowledge of both law and rights-based attitudes to children have been completed for use in this endeavour (see further chapter 11, Police as Role players).

At another level, monitoring the overall delivery of services to children is regarded as essential to protecting children’s rights, especially those of detained children. This has been recognised by the Committee on the Rights of the Child on numerous occasions. In many places, specific child justice monitoring mechanisms have been established to ensure that the human rights of children are protected.

Detention as a last resort

Article 37(b) requires States parties to ensure that:

No child shall be deprived of his liberty unlawfully or arbitrarily. The arrest detention or imprisonment of the child shall be in conformity with the law and shall be used as a last resort and for the shortest appropriate period of time.

The first part of this provision reflects an international standard that may be found in numerous international legal documents, such as the International Covenant on Civil and Political Rights (1966). However, a significant improvement in international standards has been brought about by the incorporation of the ‘last resort’ and ‘shortest period of time’ standards. These principles originated with the 1985 Beijing Rules for the Administration of Juvenile Justice, which were unanimously approved by the UN General Assembly. As ‘soft’ (i.e. non-binding) law, the Beijing rules carry only persuasive weight. They have, however, been influential in the development of the provisions of the Convention on the Rights of the Child and in shaping the comments of the Committee on the Rights of the Child. They have also informed judgements in the South African courts.

A singular problem throughout Africa is how to ensure that the detention of children is indeed in conformity with the law. In domestic legal systems, a prohibition on detention in police custody for longer than a specified period (usually 48 hours) is routine. After this, the child must be brought before a court. Also, there must be limits on the minimum age at which a child may be deprived of his or her liberty. This means that children below that age cannot be detained in police custody without violating the principle that detention must be in conformity with the law.

The rule that detention should be a last resort and used only for the shortest appropriate period of time has been included as a principle in the South African Constitution. This means that the period for which deprivation of liberty has been ordered can be tested against the constitutional requirement by higher courts. A good example is provided by the judgement of S v Kwalase, which reviewed a sentence of imprisonment imposed upon a youthful offender. The judge said:

proportionality in sentencing juvenile offenders (indeed all offenders),as also the limited use of deprivation of liberty particularly as regards juvenile offenders, are clearly required by the South African Constitution…[and with] due regard to the provisions of international instruments relating to juvenile j u s t i c e. The judicial approach towards the sentencing of juvenile offenders must therefore be re-appraised and developed in order to promote an individualised response which is not only in proportion to the nature and gravity of the offence and the needs of society, but which is also appropriate to the needs and interests of the juvenile offender (author’s emphasis).

This statement has been quoted with approval in many subsequent cases, illustrating the important role that this principle derived from international law has begun to play in shaping domestic law and practice.

The treatment of children deprived of their liberty

Article 37(c) requires that:

Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes account the needs of a person of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interests not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.

The treatment of children deprived of their liberty with due concern for their dignity and their age-related needs poses enormous challenges when children are held in police cells or prisons in most places in South Africa and Africa, especially where they are still facing trial and have not yet been convicted or sentenced. These institutions are notoriously child-unfriendly and physical conditions leave much to be desired. The solution that has emerged is to encourage the development of separate penal institutions for youthful offenders and secure care facilities for awaiting trial children who cannot be released into the care of parents or guardians.

In some instances, the management and operation of South African secure care facilities have been outsourced to the private sector by provincial state departments; these offer useful vocational training, skills development and other programmes to the young people temporarily accommodated in these facilities. The secure care facility in Polokwane in Limpopo province is one such outsourced secure care facility. There children are offered arts and crafts, woodwork and catering training, amongst other skills and educational programmes. The secure care facility called New Horizons in the Western Cape allocates a sizeable percentage (more than 30%) of its budget to activities and programmes geared towards the development of the children in its care.

Access to legal and other assistance

Article 37(d) requires that:

Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

The South African legal system has long embodied a unique system of review of lower court decisions in criminal matters. First, there is an automatic procedure whereby High Court judges sitting in chambers peruse sentences of imprisonment or suspended imprisonment imposed by lower court magistrates who have less than a minimum period of service on the bench. Second, there is generous scope for referring matters to the High Court outside of the automatic procedure for perusal by a judge. The remedy of review has proved a useful strategy in setting benchmarks for the implementation and reform of child justice practices, especially in the area of sentencing. The following case exemplifies the usefulness of the review procedure.

Case A863/99 (unreported) was brought before a High Court judge for review after a social worker discovered that two girls had spent a very long time – over a year – in prison, pending placement in a reform school to serve their sentences. Since there was, in fact, no reform school for girls in that province, the judge pointed out that, without this intervention, ‘they will presumably continue to be incarcerated indefinitely’. The judge set aside the initial sentence as it was not in accordance with justice that a sentence be imposed when the sentencing officer was under a misapprehension as to the consequences that would follow.

Review proceedings of this kind (where the proceedings of a lower court are not in accordance with justice) can be brought to the attention of the High Court by anyone or body – NGO, paralegal organisation, friend or social worker, to give just a few examples.

Administration of justice

The provisions of Article 40 of the Convention set a solid framework for the administration of justice in respect of children in trouble with the law. The first part of Article 40 details the broad aims that should characterise the state response to child offenders. Principally, this includes recognising the:

need to treat an accused child in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.

There are numerous examples of excellence in practices designed to give effect to a non-punitive, re-integrative response to children accused of having offended. Diversion is a key mechanism here. Even where formal programmes do not exist, there are opportunities that can be explored by those encountering young people in conflict with the law.

Restorative justice programmes such as family group conferencing offer a valuable tool for promoting the reintegration of children in trouble with the law into their families and communities. A police official who, after receiving training on restorative justice, put the principles into practice, described one such family group conference as follows:

The second case that was referred was that of an attempted murder. Two white youths shot a coloured youth with a pellet gun. In this case the family of the victim were initially very angry. However, they did not give us any problems and attended the conference. They claimed the suspects had acted in this way towards their child because they, the accused, were white…. I was delighted with the outcome of the conference. The two families were really united. They stood in groups, shaking hands, and showed a spirit of reconciliation.

Specialised legislation and procedures

Article 40(3) of the Convention on the Rights of the Child contains three important aspects. First, it encourages state parties to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged to have infringed the law. This provision has been interpreted as underlying the need for the separation of children within the penal procedural system and, indeed, for separate legal provisions.

The provisions of Article 40(3) clearly encourage specialisation in the area of child justice, since they refer not only to laws and procedures, but also to the authorities tasked with applying them. Indeed, best practice and delivery of a child rights based service to children in trouble with the law can be achieved even in the absence of separate legislation or procedure. The Zambian experience shows that, although new legislation has not been drafted, the identification of a specific judge with an interest in children’s rights to lead as presiding officer in a child friendly courts project has spearheaded practical reforms. These have included the introduction of diversion programmes, lower pre-trial detention rates, pre - trial community service and shorter trial periods where children appearing in her court are concerned.

Minimum age of capacity

Second, Article 40(3)(a) requires States to establish a minimum age below which children shall be presumed not to have the capacity to infringe penal law. This provision has resulted in many African countries revising the minimum age of capacity upwards. It is expected that South Africa’s Child Justice Bill will, when finalised, similarly raise the minimum age from the present seven years, which is universally regarded as very low. Although the Convention on the Rights of the Child does not expressly require this, even in cases where young children above the minimum age are accused of offences, care should be taken to ensure that their criminal capacity is properly established.

The recent case of S v Ngobesi highlights this. The case came before a judge on special review after a chief magistrate noted the age of a child convicted in his jurisdiction. The child was thirteen 13 years old, and therefore still subject to the presumption that he lacked criminal capacity unless this could be rebutted beyond reasonable doubt by the prosecution. During the trial, the prosecution did not raise the question of the child’s criminal capacity directly; but the magistrate who convicted the child argued that the child’s capacity could be inferred from the fact that he had run away from the scene of the crime. The review judge, however, disagreed, finding that the facts the magistrate cited related to the child’s actions, not to his state of mind or capacity to act as he did. ‘In no way was the cognitive capacity of the … accused assessed, that is, his ability to resist temptation.’ He could also have been affected by undue influence from the other (older) accused children. Since the state had not discharged the onus, the judge set aside the conviction.

Diversion

Third, Article 40(3)(b) exhorts States, wherever appropriate and desirable, to encourage measures for dealing with children in trouble with the law without resorting to judicial proceedings, provided that human rights and legal safeguards are fully respected. It is this provision that lays the basis for the promotion of diversion, which entails channelling cases away from courts to a variety of programmes and other alternative courses of action. It has been argued that, because diversion has been included at international law level, it can no longer be treated merely as a discretionary service provided by welfare organisations, or as being solely dependent on the personal preference of individual prosecutors or magistrates or the goodwill of the police. In terms of the principle, States are obliged by their commitment to the Convention on the Rights of the Child to ensure that, at the very least, directives, guidelines or legislation are developed to promote the use of diversion. South Africa’s forthcoming child justice legislation will give formal legislative backing to diversion, as the Bill contains a substantial chapter on diversion.

Diversion is dealt with fully later in this volume. However, as the latter part of Article 40(3) clarifies, human rights and legal safeguards must also be protected where children are diverted away from judicial proceedings. This refers not only to the need to protect children’s dignity during diversionary activities. It also means that, only where a child intends admitting the commission of an offence, should s/he qualify to be considered for diversion. In other words, the child who does not admit to the offence retains the right to have his or her innocence established in court proceedings (the right to be presumed innocent outweighs the desirability of diversion).

Alternative sentencing options

Article 40 (4) of the Convention on the Rights of the Child requires that a variety of dispositions, such as care, guidance and supervision orders, counselling, probation, foster care, education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their wellbeing and proportionate to both their circumstance and the offence.

The application of this article finds expression in the development of a range of creative alternative sentencing options aimed at avoiding the institutionalisation of children. These alternatives to institutional care frequently draw on the same programmes as are offered as diversion options (see further chapter 8, Alternative Sentencing). However, it is worthy of note that Article 40(4) also mentions the possibility of options usually regarded as welfare interventions, such as care orders and foster care. Institutional care (as referred to in Article 40(4)) includes not only imprisonment, but also other forms of institutional care, such as referrals to reform schools, schools of industry, residential vocational or educational institutions and so forth. Again, in accordance with article 37 (b), any deprivation of liberty should be used only as a last resort. The Kenyan Children’s Act of 2002 probably goes the furthest of recently enacted laws towards the avoidance of incarceration; a significant provision outlaws any form of imprisonment for children subject to the Act. Upon making a finding of guilt, a court may: put the child on a probation programme; commit the child to the care of an adult or a charitable institution; commit the child to a rehabilitation school or borstal institution; commit the child to counselling; place the child in an educational institution or vocational training; commit the child to community service; discharge the child, or arrange for a friendly settlement.

In South Africa, the case of S v Z laid down important principles for the sentencing of children, aspects of which complement the ideals contained in Article 40(4) of the Convention on the Rights of the Child. First, the view was expressed that the younger the child, the more inappropriate a sentence of imprisonment. Second, imprisonment is especially inappropriate in cases where the child is a first offender. And third, it was said that short-term imprisonment is seldom appropriate in cases involving juveniles. The judgment also encouraged the concept of what it termed ‘monitoring and follow up’ as an element of sentencing. It was suggested that fully suspended sentences that effectively end the minute the child walks away from the court cannot generally be regarded as suitable without some ongoing intervention. S v Z continues to play an influential role in the development of South African sentencing policy as far as children are concerned.

The African Charter On The Rights And Welfare Of The Child

The provisions of the Convention on the Rights of the Child are supplemented at regional level by the provisions of the African Charter on the Rights and Welfare of the Child. This regional treaty entered into force in 1999, and will be overseen by a Committee of Experts that met for the first time in 2002.

With regard to child justice, the African Charter is more limited in scope than the Convention Article 17(1) of the Charter provides that:

Every child accused or found guilty of having infringed penal law shall have the right to special treatment in a manner consistent with the child’s sense of dignity and worth and which reinforces the child’s respect for human rights and the fundamental freedoms of others.

Article 17(3) defines the essential aim of this special treatment as being the child’s ‘reformation, reintegration into his or her family and social rehabilitation’. Underlying the notion of treatment, therefore, is the idea of restoring the child to his or her family and society – a key African value, as well as part and parcel of the founding ideology of restorative justice practitioners. The provisions of the African Charter can be seen as paving the way for the expansion of restorative practices and policies in order to promote best practice in the administration of child justice in African contexts.

Mr and Mrs R were married in 1999. Mr R is the father of V, J-L and J. Before their marriage both Mr and Mrs R suffered from significant alcohol problems. Mr R’s first contact with the community addiction team of the social services was in 1991 and Mrs R in 1996. After their marriage the problems with alcohol continued. Periods of abstinence were followed by periods of binge drinking and episodes of domestic violence. These are well documented in various social work reports. Mrs R was able to abstain from alcohol during her pregnancies with V and J-L but, unfortunately, relapsed into heavy drinking shortly after the children were born.

V and J-L were placed in care as a temporary arrangement a number of times. It is clear that they had suffered as a result of their parents’ alcoholism. On occasions they witnessed domestic violence. Eventually in 2000 they were taken into care on a permanent basis and were adopted on 18 June 2003 after a freeing application. They have been adopted by the same family and live together.

Mrs R’s eldest child, who was born on 25 May 1991, is in long term foster care.

Neither Mr R nor Mrs R has had any direct contact with V and J-L since the adoption. Annual indirect contact takes place. Mrs R has been more scrupulous in availing of this than Mr R.

When it became known to the social services that Mrs R was pregnant with a fourth child – J - a child protection case conference was held on 24 September 2003 at which it was decided that the baby’s name should be placed on the child protection register under the categories of ‘potential emotional abuse’ and ‘potential for neglect’. On the day after the baby was born the trust applied for an emergency protection order. Within a few days of his birth J was removed from the care of his mother. He has not returned to her care since that time. At the time that the matter came before the Family Proceedings Court the trust was aware that Mrs R was being treated by a consultant psychiatrist, Dr Ciaran Mulholland, and that she was under the care of the community psychiatric nurse, Sister Fahy. However, the trust decided to engage Dr Neal Quigley, a consultant psychiatrist who had not previously met Mrs R, to advise after examination on 18 November 2003. The Family Proceedings Court, sitting on 16 December 2003, was not informed that Dr Mulholland and Sister Fahy were optimistic that Mrs R would be able to give J proper care, and consequently made an interim order placing the child in the care of the trust until 13 January 2004. The trust had indicated to the court that it did not intend to make any residential assessment of the mother’s ability to care for the child and it proposed that contact between the child and the mother should be limited to one and a half hours per week. The court was dissatisfied with this proposal and ultimately, by a majority, ordered that contact with the mother should take place four times per week. The dissentient on the panel indicated that even more generous contact should have been allowed.

The Family Proceedings Court transferred the case to the Family Care Centre with a view to its onward transmission to the High Court. Three issues were at stake on the hearing of the application: - first, the trust’s application for a care order (this was opposed by the mother); second, the mother’s application that there should be a residential assessment (in other words, that her parenting skills and capacity should be tested in a residential setting); and, finally, her application for contact. The judge granted the application for the care order. He did not make an order for residential assessment. He did not deal with the issue of contact at the time that he delivered his judgment. After the judgment had been delivered the trust reduced the level of contact. Mrs R was dissatisfied with this and on 2 September 2004 she duly applied for enlarged contact pending the hearing of this appeal. On 24 September the judge ordered that contact between mother and child should take place fortnightly. Mrs R appealed against the judge’s ruling on all three issues.

Mrs H, a social worker with the trust, prepared a report for the hearing on 16 December 2003. In it she documented the recent history of relations between Mr and Mrs R and their contact with the trust. The couple separated in November 2003, Mrs R having obtained non-molestation and occupational orders on 4 November. They have not lived together since. Mrs H stated in the report that the trust had reached the opinion that J was likely to suffer significant harm if he remained in the care of his mother. That opinion was based on the trust’s assessment of the history of the family and on the report of 18 November 2003 from Dr Quigley.

No mention was made of Dr Mulholland’s view that there was no reason to believe that she would not be an adequate parent if she continued to abstain from alcohol or of his optimism that she could continue to refrain from alcohol on this occasion. Nor was any mention made of Mrs R’s rights under Article 8 of the European Convention on Human Rights and Fundamental Freedoms. An independent social worker supported Dr Mulholland’s opinion but her report was attacked by Mrs H. It appeared that the Trust had already made its mind up and was not prepared to countenance any contrary opinion. The Guardian ad Litem appeared to adopt the trust’s viewpoint.

The trust did not present any formal care plan to the court.

The judge’s decision

The judge was heavily influenced by the need to deal with the case promptly so that a settled future for J could be secured. He accepted the testimony of Mrs H and that of the Guardian ad Litem. It is unclear whether or not he took cognizance of the fact that the GAL’s report was based on one interview with Mrs R! He granted a care order.

The judge did not appear to give due consideration to Mrs R’s article 8 rights and the positive duty to take measures to facilitate family reunification.

The judge did not make a residential assessment order.

In appealing the judge’s decision, the appellant’s submission was that the judge should have declined to make the care order that the trust had applied for. Instead he ought to have made an interim order so as to permit a residential assessment order under article 57 (6). The appellant also argued that her rights under Article 8 of the European Convention on Human Rights and Fundamental Freedoms had been breached. The appellant argued that the actions of the trust in seeking a care order that effectively prevented her from having contact with her child or the opportunity to establish that she is or could become capable of caring properly for J violate her article 8 rights. She also argued that the court, in making the care order, likewise acted in breach of those rights. Finally, she argued that neither the trust nor the court had sufficient regard for the nature of the rights that arise under article 8 and made no proper evaluation of those rights in balancing them against what they perceived to be the interests of J.

The removal of a child from his parents is recognised in Strasbourg jurisprudence and in domestic case law as a draconian measure, to be undertaken only in the most compelling of circumstances. In particular the state authorities must explore alternative measures to avoid such a drastic course. Only where it can be demonstrated that no other option is feasible will such a choice be justified. This is particularly so in the case of a newly born child.

The judges in the Appeal Court were satisfied that the trust did not explore alternatives to the care order in any meaningful way. All of the evidence pointed inexorably to the conclusion that the trust had decided at an early stage that the only feasible option for J was adoption. From the beginning, the trust wanted to restrict the contact that he would have with his mother. On this discrete issue the trust was acting well outside established guidelines given unambiguously by the courts in a number of cases. It will suffice to refer here to Munby J in Re M (Care Proceedings: Judicial Review). At paragraph 44 (iv) of his judgment he said: -

“If a baby is to be removed from his mother, one would normally expect arrangements to be made by the local authority to facilitate contact on a regular and generous basis. … one will be looking to contact most days of the week and for lengthy periods.”

The Appeal Court noted that there could hardly be a more marked contrast between what was said by Munby J to be the minimum necessary to meet the ‘imperative demands of the European Convention’ and the level of contact proposed by the trust in this case. Not only does this provide further evidence of the trust’s failure to recognise the article 8 rights of Mrs R, it is indicative of the trust’s determination from the outset that no alternative to adoption for J was to be considered.

The Court also noted that it is desirable that permanent arrangements be made for a child as soon as possible. It is therefore entirely proper that this factor should have weighed heavily with the trust and with the judge in deciding what was best for J. But this factor must not be isolated from other matters that should be taken into account in this difficult decision. It is important also to recognise that the long term welfare of a child can be affected by the knowledge that he has been taken from his natural parents, particularly if he discovers that this was against their will.

In C v Solihull MBC [1993] 1 FLR 290 Ward J said: -

“… delay is ordinarily inimicable to the welfare of the child, but … planned and purposeful delay may well be beneficial. A delay of a final decision for the purpose of ascertaining the result of an assessment is proper delay and is to be encouraged.”

The Appeal Court considered that in the present case there were sound reasons to postpone the decision as to where J should ultimately be placed. There was already cause for optimism and with close supervision it was at least distinctly possible that Mrs R would have been able to care for her son. It may well be that the trust, Sister Fahy and Dr Mulholland would have been involved in monitoring Mrs R for many years but this, the Court believed, would have been the better course than taking the child away from his mother. Although a decision on J’s future that would have allowed permanent arrangements to be made was desirable, this did not outweigh the need to give Mrs R the chance to prove herself. Taking into account ‘the imperative demands’ of the convention in relation to her article 8 rights, the need to have matters settled for J should not have been allowed to predominate to the extent that the mother’s convention rights could be disregarded.

In so concluding the judges noted that the court is required by article 3 (1) of the 1995 Order, when determining any question with respect to the upbringing of a child, to treat the child’s welfare as its paramount consideration. They were also conscious of the reminder in article 3 (2) that delay in determining such a question is likely to prejudice the welfare of the child.

Although the court must treat the child’s welfare as paramount, this does not mean that it should exclude from its consideration other factors such as the article 8 rights of the parent. While these cannot prevail over the welfare of the child, they must be taken into account. A decision to delay the arrangements for J would, of course, have carried the risk of prejudice to him but set against that risk must be the consideration that, in general, a child should be with his natural parent. While according J’s welfare the paramountcy of importance that it required, we do not consider that this pointed overwhelmingly in the direction of a care order being made.

The event of overwhelming significance that has occurred since the order was made and which must predominate in the judges’ decision as to what should now be done in this tragic case, was the placement of J with the X family where he now lives with his natural siblings, V and J-L. He has settled in well to that environment and has formed a close attachment to Mrs J as his principal carer. He also enjoys a good relationship with his brother and sister and they with him. The awful dilemma that this court must now confront is whether to disturb that happy relationship, notwithstanding the court’s conclusion that this situation should not have arisen.

The Court concluded that a care order in the terms sought by the trust should not have been made in this case, primarily because it involved an infringement of Mrs R’s article 8 rights. The Court was satisfied that the trust had decided at a very early stage that J’s long term interests lay in being placed for adoption and that they have resolutely adhered to that plan throughout. The court was also satisfied that they did not at any stage consider Mrs R’s convention rights. This should have been pre-eminent in the trust’s approach to the case.

Mrs R’s article 8 rights required that her child should not be taken from her unless every feasible alternative was thoroughly explored and rejected for good reason. This clearly did not happen. The alternatives included not only a residential assessment order but also rehabilitation of the child with his mother subject to a stringent supervision order.

The Court concluded that the guardian ad litem also failed to have regard to Mrs R’s convention rights. While, of course, the primary focus of GAL’s concern must have been J’s welfare, she should also have been conscious that a recommendation by her that J should be removed from his mother’s care might violate her article 8 rights.

While the Court concluded that Mrs R’s convention rights were infringed and that the care order should not have been made it did not feel that the care order should be reversed. J had been living with his new family for seven months and was happy with them. His siblings have established a bond with him and he is happy in a loving family background. The Appeal Court judges held that disrupting this bonding was not in J’s best interests. They accepted that this was a tragedy for Mrs R. It was doubly so because she should have been given a chance to show that the faith that Dr Mulholland, Sister Fahy, Mrs Leonard and her own mother expressed in her was not misplaced. Far more importantly she has lost that most precious of life’s gifts, the chance to rear one’s own child. She is not to be blamed for this loss. But, however, sympathetic they were to her plight, the over riding statutory obligation was to treat J’s welfare as paramount. For that reason the Court refused the mother’s application that the care order be dismantled and that J be returned to her care. Similarly the Court refused her application for an order that a residential assessment take place. Counsel was given the opportunity to make submissions on the level of contact that should occur in light of that decision.

^[1] The full Report can be downloaded from:

http://www.communitylawcentre.org.za

The Right To Life

Willie McCarney

CHILD JUSTICE IN AFRICA: A GUIDE TO GOOD PRACTICE