When did the process/ struggle begin?
Under the OECS Family Law and Domestic Violence Reform Initiative consultations were held to harmonize existing laws and reform the justice system to deal with family and domestic violence issues (social concerns) in keeping with basic human rights and the relevant International Conventions ratified by Member States. One of the outputs of the process was the OECS Draft Child Justice Bill, since family law includes children and their interests.
Why the need for the Bill?
To take a more rights-based, individualized approach to dispensing justice for children in conflict with the law, with the main focus on diverting them away from the criminal justice system and providing effective rehabilitation. There was also need to consider a minimum age of Criminal Responsibility given that in the OECS region it spanned ages 7-12 years.
Who is a child?
Any person under the age of 18.
A child in conflict with the law - means a child who is alleged to have committed an offence.
What is the age of Criminal Responsibility?
It is the minimum age below which the child shall be presumed not to have the capacity to infringe the penal law. In other words, a child who has not yet reached that age cannot be charged with an offence or subjected to any criminal law procedures or measures (the general agreement for the OECS harmonized Child justice Bill is 12 years). Children under the age of 12 who commit serious offences will be dealt with under the Care and Protection (civil) system.
Although this age is debatable and difficult to pinpoint, it is an age at which a child can be considered to have a general understanding of the nature and content of criminal proceedings and the potential repercussions.
Why a separate specialized System for Children who are alleged to commit offences?
Children are among the most vulnerable members of society and it is the duty of the state to protect them until they are adults. It is for this reason children are treated differently from adults in the criminal justice system.
The general process for dealing with children in conflict with the law is that, when a child who is alleged to have committed an offence is arrested and charged, the matter goes to Court where the child could plead guilty or be found guilty during a trial. A probation or pre-sentence report is usually requested by the Magistrate to be used in informing the sentencing decision. Magistrates had very limited sentencing options in the legislation, however, and the process of pre-trial diversion was not formalized.
The reform legislation supports pre-trial diversion at an informal mandatory procedure called The Initial Inquiry.
Prior to attending the initial inquiry, the child alleged to have committed the offence must be assessed for individual, family and community history that may put them at risk for reoffending and the needs that can be addressed to reduce reoffending are explored. The reform also addresses screening for mental health issues. The report from this process would inform the Magistrate or Committee/Board, which conducts the initial inquiry, on how to divert the child if this is an option under consideration. Otherwise the child will move on to a formal Court trial.
The reform legislation has 3 levels of diversion listed from which the Magistrate or Committee/Board can choose. The relevant Minister also has the power to create or endorse court connected diversion. What the reform legislation does is that it provides the court with a history of the child from the onset, thus giving the Magistrate or Committee/Board information that would help in dealing with the child. It also speaks to the role of key stakeholders like, police, the DPP, probation/social worker/ assigned officer. The diversion process usually uses community-based measures that allows for second chances and saves judicial time for more serious matters.
If the matter goes to trial and the child pleads or is found guilty, a pre-sentence report will be requested which will inform the sentence choice of alternative sentences or, residential facility or correctional facility.
The Philosophy is that children in conflict with the law should only be detained as a measure of last resort for the shortest possible time.
The general goal is to hold the children accountable, rehabilitate them in the process and in some cases reintegrate them back into their community. This supports the individualized rights-based approach where appropriate, fair and proportionate are key determinants of the outcome. It is no longer one size fits all.
We need you to keep the conversation alive for our children.
Major funding for the Reform has been provided by USAID through the OECS Commission under the Juvenile Justice Reform Project (JJRP) Phase 1 and now Phase11. There has also been tremendous support from UNICEF.
Gloria Septra Augustus is the Technical Specialist for the Juvenile Justice Reform Project II at the OECS Commission. She has been a Magistrate from October 2004 dealing mainly with Juvenile and family court matters in Dominica.