An Outside Chance: Street Children and Juvenile Justice

Transcription

In many countries around the world children who live and work on the streets are
particularly vulnerable to human rights violations in juvenile justice systems: they are highly
likely to come into contact with the criminal justice system in the first place, and they are
less able to defend themselves from abuse once within the system. These children are
discriminated against and have their rights violated because they are poor.
This publication aims to provide a comprehensive overview of the causes and
consequences of street children’s involvement in criminal justice systems in a wide range
of countries.
It is aimed at anyone with an interest in these issues and in particular: policy-makers in
relevant government departments; personnel working in the various branches of the
justice system; NGOs working with street children and/or on juvenile justice issues;
academics; human rights lobbyists; public and private donors; and actors in the UN and
regional human rights systems.
It includes:
•
•
•
•
•
Descriptions - in the children’s own words - of the treatment they receive
at different stages of the criminal justice system;
A framework of overarching concepts and recommended approaches
to reform;
An introduction to international human rights standards and guidelines on
how to use them;
Practical examples of projects and approaches from around the world;
Specific recommendations for improvement, including recommendations
from children themselves, targeted at different actors in the system.
These children are seen as outsiders by society, often with only an outside chance of
survival and development to their fullest potential. We owe it to their incredible resiliency,
courage and imagination in the face of exceptionally difficult circumstances to work
together to turn this ‘outside chance’ of survival and development into the guaranteed
fundamental human right to which they are entitled.
ISBN: 0-9547886-0-5
Consortium for Street Children
Unit 306, Bon Marché Centre,241-251 Ferndale Road, London SW9 8BJ, UK
Email: [email protected] www.streetchildren.org.uk
Tel: +44 (0)20 7274 0087 Fax: +44 (0)20 7274 0372
“
We find out too soon that one shouldn’t mess
with the law. We find out too soon that
unlike other systems in the government,
this one is swift and unforgiving – especially
when you are poor and powerless.
Especially when you are a street child.
“
FILIPINO STREET CHILD 1
“
Come close to me, hear our cries
You come from far away just to criticise
Locked up at eight, what am I gonna do?
The ones who escape are only a few
Nothing but beatings for us who remain
I swear I don’t get this place, this pain
Many have a skill, a future to fulfil
With hope for a career
We wouldn’t be in here
This dark place where there is no play
My soul smiles only at the break of day
Justice refuses to hear my voice
I’m just locked up, I have no choice
“
RAP PERFORMED BY BOYS AT A JUVENILE DETENTION CENTRE IN SÃO PAULO, BRAZIL 2
1 Quoted in UP CIDS PST, Painted Gray Faces, Behind Bars and in the Streets: Street Children and
Juvenile Justice System in the Philippines, Quezon City, UP CIDS PST and CSC, 2003, p.46.
2 Footage from Blewett, K. and Woods, B., Kids Behind Bars [film], True Vision productions, 2001.
CONSORTIUM FOR STREET CHILDREN
The Consortium for Street Children (CSC) is a network of NGOs working with
street-involved children, and children at risk of taking to street life in Africa,
Asia, Eastern and Central Europe, and Latin America.
OUR MISSION STATEMENT
Working collaboratively with its members, the Consortium for Street Children
co-ordinates a network for distributing information and sharing expertise
around the world. Representing the voice of many, we speak as one for the
rights of street children wherever they may be.
OUR VISION STATEMENT
The Consortium for Street Children believes in collective action as a force for
change: to protect children at risk, to promote their human rights and to
prevent future generations from suffering the same lack of choices that
presently force children onto the street. We believe that it is possible to
achieve better lives for street children, and we believe that the way to do this
is through the children themselves. By working together to implement crucial
societal changes we can ensure that street children have a better option: the
chance to shape their own lives in the manner of their choosing.
This publication has been funded as part of a two-year research and advocacy project
‘Promoting and Protecting the Human Rights of Street Children in Juvenile Justice
Systems’, January 2002 – December 2003, funded by the Community Fund, the Foreign and
Commonwealth Office (Human Rights Project Fund), the Methodist Association of Youth
Clubs ‘Streets Apart’ Campaign and the Methodist World Development Action Fund.
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AN OUTSIDE
CHANCE
Street Children and Juvenile Justice –
an International Perspective
Marie Wernham
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AN OUTSIDE
CHANCE
Street Children and Juvenile Justice –
an International Perspective
Marie Wernham
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© 2004 Marie Wernham and Consortium for Street Children
All rights reserved.
This publication may be reproduced, as a whole or in part, provided that
acknowledgement of the source is made. Notification of such would be
appreciated.
ISBN: 0-9547886-0-5
Published by:
Unit 306, Bon Marché Centre, 241-251 Ferndale Road,
London SW9 8BJ, UK
[email protected]
www.streetchildren.org.uk
May 2004
Author: Marie Wernham
Design, layout and printing: CPO, Worthing
Cover illustration: Joseph Betarmos
About the artist: 16-year-old Joseph Betarmos, from Mindanao in the Philippines,
is one of the young people who took part in the Philippine National Consultation
Workshop on Street Children and the Juvenile Justice System in August 2001 as
part of the international project on which this publication is based. He is an
active member of a community theatre based in Davao City. Toots, as he is more
popularly known, believes that art is a great tool in educating people. An
advocate for children’s issues, he happily describes his work as light and funny
but capable of creating great impact in the community. His dream is to become a
professional artist. Like his life story, Toots’ drawings come from the heart, one
that is resilient and full of desire to continue and enjoy living while helping
others in need.
The Consortium for Street Children is grateful to the Community Fund,
Foreign and Commonwealth Office (Human Rights Project Fund) and the
Methodist World Development Action Fund for their financial support of
this book.
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HOW TO USE THIS BOOK
STEP 1
DON’T PANIC! There is a lot of material but you don’t have to read it all! The
following guidelines will help you to navigate your way through the book.
STEP 2
Use the detailed contents page to identify the sections that interest you most.
However, it is strongly recommended that everybody should read:
o Chapter 2: to get an overview of the key policy messages which are featured
throughout the book;
o Chapter 5: for an overview of the system and actors involved;
o Chapter 8: to familiarise yourself with the recommendations that apply to you.
STEP 3
Read the brief ‘chapter overviews’ and ‘chapter summaries’ at the beginning
and end of each chapter to get a clearer idea of what each chapter contains.
Within each chapter children’s quotations, case studies, project examples and
practical tips are clearly marked.
STEP 4
Please feel free to give us feedback: Which parts were most useful? How have
you used the book? How can it be improved? Do you have better project examples
or case studies to share?
Email [email protected]
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ACKNOWLEDGEMENTS
CSC would like to thank all those who contributed to this project. Special thanks go to
the children who had the opportunity to take part in this project, as well as to those
who did not: those who are still on the streets or behind bars. Hopefully this project
will go some way towards sharing their stories and highlighting their incredible
resiliency, courage and imagination in the face of exceptionally difficult
circumstances, reminding us that street children are first and foremost children,
humans entitled to human rights, who need us to work together as a matter or urgency
to put the ‘justice’ back into the ‘justice’ system. This book is for them.
We are very grateful to the Community Fund, Foreign and Commonwealth Office
(Human Rights Project Fund), the Methodist Association of Youth Clubs ‘Streets Apart’
Campaign and the Methodist World Development Action Fund for their financial
support of this project.
Thank you to our local partners without whose dedication, enthusiasm and hard work
none of this would have been possible: the Child Rights Advisory and Legal Centre
(CRADLE) and the Undugu Society of Kenya (USK) in Kenya; Casa Alianza Nicaragua
(CAN) in Nicaragua; Human Development Initiatives (HDI), in association with the
Children’s Developmental Centre (CDC), in Nigeria; AMAL Human Development
Network and the Society for the Protection of the Rights of the Child (SPARC) in
Pakistan; the Psychosocial Trauma and Human Rights Program of the University of
the Philippines Centre for Integrative Studies (UP CIDS PST) in the Philippines; and
Asociatia Sprijinirea Integrarii Sociale (ASIS) in Romania. The author / project
coordinator would specifically like to thank the following individuals from these and
other organizations: Fred Agbenortor, Dr. Yinka Akindayomi, Antonio Auditor, Paul
Avevor, Zelmira García Cortes, Prof. Graham Giles, Rodica Gregorian, Elena HuraTudor, Farah Iqbal, Elanor Jackson, Anees Jillani, Jane Kamangu, Beatrice Kavesu,
David Maidment, Millie Odhiambo, Ariyo Okunsanya, Bernard Outah, Prof. Bolaji
Owasanoye, Evelyn Palma Arroliga, John Parry-Williams, Elizabeth Protacio-de Castro,
Asmet Rosales Barrientos, Anita Schrader, Fr. Patrick Shanahan, Teresita Silva, Martin
Swinchatt, Pervaiz Tufail, Bro. Jos Van Dinther, Randini Wanduragala, Tracey WagnerRizvi, Nancy Wamwea and Agnes Zenaida Camacho.
The author would especially like to thank her colleagues at the Consortium for Street
Children for their support and patience: Iain Byrne, Thomas Feeny, Sadia MahmudMarshall and Mabel Wong, along with the CSC trustees, Advocacy Group and
members. CSC interns Christina Michels and Olivia Wills assisted with initial country
research and Lara O’Neill provided invaluable research for the first draft of this book.
Thanks to those who provided input into the final draft, in particular Bruce Abramson,
Clarisa Bencomo, Randini Wanduragala, Andy Williams and Mabel Wong, as well as
Tim Cahill, André Dunant, Rodica Gregorian, Elena Hura-Tudor, Farah Iqbal , Elanor
Jackson, Séverine Jacomy, David Maidment, Teresita Silva and Ann Skelton. Any
errors or omissions are the responsibility of the author.
Final thanks go to Gerard Waite for invaluable assistance with editing.
6
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CONTENTS
HOW TO USE THIS BOOK
5
ACKNOWLEDGEMENTS
6
CHAPTER 1: INTRODUCTION
11
•
•
•
•
•
Chapter overview
Putting ‘justice’ back into the ‘justice system’
Overview of the book
Guiding principles for the way forward
Definition issues
o Definition of the term ‘child’
o Who are ‘street children’?
o What do we mean by ‘juvenile justice systems’?
o Unpacking the term ‘children in conflict with the law’
o Words matter: terminology used in this book
Gender
o The gender imbalance
o Problems faced by girls
o Problems faced by boys
o The need for gender-sensitive interventions
Chapter summary
11
11
12
12
13
13
13
14
14
15
15
15
15
16
16
17
CHAPTER 2: GUIDING PRINCIPLES FOR THE WAY FORWARD
18
•
•
18
19
19
19
19
19
19
20
21
21
21
22
23
•
•
Chapter overview
The 3-part framework for reform:
A) A Child rights-based approach to reform: a holistic approach to the
UN Convention on the Rights of the Child (CRC)
A.1. Why do we need a holistic approach?
A.2. Specific CRC articles relevant to juvenile justice
A.3. Five CRC umbrella rights
o Introducing the ‘Table Leg Test’
B) Key concepts
B.1. Each child is unique and requires an individualised approach
o Victims, villains or heroes?
o Criminalisation, stereotyping and dehumanisation of street children
a) Criminalisation, stereotyping and dehumanisation at the collective
level: media and public opinion
b) Criminalisation, stereotyping and dehumanisation at the individual
level: relationships
c) Racial and ethnic discrimination
d) Rising to the challenge
B.2. Choices, limited choices and non-choices
The 3-stage ‘choice process’
B.3. Relationship-building is key to reform
24
25
26
26
26
27
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28
28
31
32
32
33
36
37
•
38
CHAPTER 3: INTERNATIONAL HUMAN RIGHTS INSTRUMENTS
38
38
39
39
40
•
•
•
41
41
42
42
43
44
8
Page 8
•
•
a) Sensitisation
b) Collaboration
B.4. The role of the community is essential
B.5. Respect for children’s resiliency and peer relationships
• What is resiliency?
• Examples of resiliency
C) The need for reform in four priority areas
Chapter summary
Chapter overview
International and regional human rights instruments at a glance
Child-specific instruments
1. UN Convention on the Rights of the Child (CRC)
2. UN Guidelines for the Prevention of Juvenile Delinquency: the ‘Riyadh
Guidelines’
3. UN Standard Minimum Rules for the Administration of Juvenile Justice:
the ‘Beijing Rules’
4. UN Rules for the Protection of Juveniles Deprived of their Liberty: the
‘JDLs’
5. UN Resolution 1997/30 – Administration of Juvenile Justice: the ‘Vienna
Guidelines’
6. African Charter on the Rights and Welfare of the Child (ACRWC)
Summary of the instruments
Chapter summary
45
CHAPTER 4: CIRCLE OF EXPERIENCE: LINKS BETWEEN THE CAUSES OF
STREET MIGRATION, BEHAVIOUR ON THE STREET AND TREATMENT IN
THE JUSTICE SYSTEM
45
45
46
47
48
•
•
Chapter overview
Making the links: choices, resiliency and entry points for intervention
A) Causal factors of street migration
1. Poverty
2. Ruptured family relationships: abuse, neglect, violence and reconstructed
families
3. Urbanisation
4. HIV/AIDS
B) Behaviour and survival strategies on the streets
1. ‘Vagrancy’
2. Substance abuse
3. Involvement / coercion in adult criminal activity
4. Street gangs
Chapter summary
50
51
52
52
53
57
59
61
•
62
CHAPTER 5: HOW DOES IT ALL WORK? PROCESS AND ACTORS
62
63
64
64
64
65
65
66
67
•
•
Chapter overview
Street children in the criminal justice system – a revolving door
1. On the street
2. Arrest
3. Police cells
4. Juvenile (or adult) court
5. Remand home or adult prison
6. Juvenile (or adult) court
7. Alternatives to detention, approved school or ‘re-education centre’,
borstal or prison
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Relationships in the criminal justice system: are street children ‘falling
through the net’, or cared for in a network of support?
o The role of different actors in reform
o The importance of the community
o Relationship mapping exercise
Chapter summary
67
69
69
70
71
CHAPTER 6: STREET CHILDREN’S EXPERIENCE IN THE
INJUSTICE SYSTEM
72
•
72
73
74
75
77
78
79
80
83
86
87
91
91
91
92
93
94
95
100
102
102
106
109
109
111
112
•
Chapter overview
1. On the street: police and private security guards
a) Violence
b) Death squads
c) Sexual abuse
d) Harassment
e) Bribery, extortion and corruption
f) Arrest
g) ‘Roundups’ / ‘street cleaning’ operations
h) Interrogation
i) Accountability and complaint mechanisms
j) Positive experiences with the police
2. Detention: police cells / remand homes / other institutions
a) Issues affecting girls in detention
b) Remand / pre- / under trial detention
c) Detention with adults
d) Physical conditions in detention
e) Treatment in detention
f) Positive experiences in detention
3. Trial / hearing and sentencing: judges and lawyers
a) General experiences
b) Positive experiences in court
4. Reintegration
a) General experiences
b) Positive experiences with reintegration
Chapter summary
CHAPTER 7: PRIORITIES FOR INTERVENTION
113
•
•
•
113
113
114
114
115
•
•
Chapter overview
Breaking the ‘revolving door’ cycle: entry points for interventions
Priority 1: Prevention
o What is it?
o Prevention of street migration and prevention of first time and
re-offending:
1) Developmental prevention
2) Responsive prevention
o Challenges of prevention work
Priority 2: Separation of criminal and social welfare systems
o Steps needed to facilitate separation of criminal justice and social welfare
systems
Priority 3: Diversion
o What is it?
o The benefits of diversion
– Benefits for the individual child
– Benefits for society
– Economic benefits
o Types of diversion
o Conditions of diversion
o Challenges to implementing diversion programmes for street children
o Examples of diversion
115
116
119
119
124
125
125
125
125
125
126
126
127
128
128
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128
131
134
134
136
139
139
140
141
142
142
145
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•
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– Comprehensive diversion programmes
– Specific forms of pre-trial diversion: mediation and family group
conferencing
– The role of traditional and informal justice systems in relation to street
children and diversion
• Core principles when utilizing traditional and informal justice
systems for diversion
• Are traditional and informal justice systems suited to the street
children context?
o The role of the police in diversion programmes
Priority 4: Alternatives to detention
o A reminder of the problem
o Examples of alternatives to detention
o Examples of disposal / sentencing alternatives
o Examples of short and long term non-custodial measures
o Example of comprehensive reform in relation to alternatives to detention
Chapter summary
146
CHAPTER 8: RECOMMENDATIONS
146
147
148
151
•
•
•
•
158
REFERENCES
162
APPENDICES
162
1.
165
2.
167
169
171
173
176
3.
4.
5.
6.
7.
177
8.
180
182
9.
10.
184
11.
186
188
190
191
12.
13.
14.
15.
194
CSC: STREET CHILDREN AND JUVENILE JUSTICE PROJECT
(JAN 2002 – DEC 2003) - INTERNATIONAL PARTNERS
IBC
ABOUT CSC
Chapter overview
Conclusions
General recommendations
Recommendations according to stages and actors in the system
Consortium for Street Children project: ‘Promoting and Protecting the
Human Rights of Street Children in Juvenile Justice Systems’, Jan 2002 –
Dec 2003
Street Children and the Convention on the Rights of the Child (CRC): full
text of CRC Articles 37 and 40
Juvenile Justice Checklist (from UNICEF CRC implementation handbook)
Penal Reform International: ten point plan for juvenile justice
Example of overall juvenile justice reform: Uganda
The Role of the police: example of good practice from Uganda
The European Network of Ombudspersons for Children (ENOC) – ‘Juvenile
Justice: Europe’s Children’s Champions Challenge Governments to Respect
Young Offenders’ Rights’
Street children and juvenile justice: children’s participation – activity
examples (Philippines)
Racism in criminal justice systems
[Draft] Screening tool for children with emotional, behavioural and
developmental challenges
Understanding mental disability: table of some developmental disorders /
difficulties, definition, description, physical manifestations and causes
Guidelines for recognizing and responding to traumatized children
Guide to the Consortium for Street Children’s urgent action procedure
The UN Study on Violence against Children
International resources for juvenile justice
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1
1
INTRODUCTION
Chapter overview
Outlines why there is a need for this book.
•
Provides a brief overview of the background, audience and
contents of the book.
•
Introduces the key themes of the book which act as guiding
principles for a three-part approach to reform.
•
Explores issues around definitions of ‘street children’,
‘juvenile justice systems,’ ‘children in conflict with the law’
and the need for child-friendly and accurate terminology.
•
Gives an overview of issues relating to gender in the context
of street children and juvenile justice.
PUTTING ‘JUSTICE’ BACK INTO THE
‘JUSTICE’ SYSTEM
In many countries around the world, children and adolescents who live and work on
the streets suffer from wide-ranging human rights violations in so-called ‘justice’
systems. Each individual child has a story to tell. Taken together, these stories vary in
the details, but they share a common theme: injustice.
Street children are highly likely to come into contact with the criminal justice
system in the first place due to discrimination and the circumstances in which
they are forced to survive, regardless of whether or not they have actually
committed a crime. Due to outdated legislation they are arrested and face harsh
sentences for petty (often ‘survival’) theft, substance abuse, begging and
‘vagrancy’. Furthermore, they are less able to defend themselves from abuse
once within the system due to limited or no contact with responsible adults who
can speak up on their behalf, lack of funds to bribe their way out of the system,
and the fact that their voices are not heard or respected. In short, street children
are discriminated against and have their rights violated because they are poor.
Street children are seen as outsiders by society, often with only an outside chance of
surviving and developing to their fullest potential. We owe it to their incredible
Chapter 1: Introduction
“
While selling
sweets, I found a
wallet lying on the
ground and asked a
woman standing
nearby if it belonged
to her. A man
standing there said
it was his and I had
picked his pocket.
He handed me over
to the police. The
police ate all my
sweets and locked
me up. I will sell
sweets again when I
get out of here, but I
will never help
someone again.
“
•
(8-YEAR-OLD BOY,
BORSTAL JAIL,
BAHAWALPUR,
PAKISTAN) 1
1 Quoted in Wagner-Rizvi, T., and Jillani, A.,
Waiting for the Sunrise: Juvenile Justice in
Pakistan, SPARC and Consortium for Street
Children, December 2003, p.84.
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resiliency, courage and imagination in the face of exceptionally difficult circumstances
to work together to turn this ‘outside chance’ of survival and development into the
guaranteed fundamental human right to which they are entitled. This publication
aims to share some of these young people’s stories and to point the way forward to
ways in which, working collaboratively, we can put the urgently needed ‘justice’ back
into the ‘justice’ system.
OVERVIEW
This publication aims to provide a comprehensive overview of the causes and
consequences of street children’s involvement in criminal justice systems in a wide range
of countries. It is based on the findings from a two-year research and advocacy project by
the Consortium for Street Children with partners in Kenya, Nicaragua, Nigeria, Pakistan,
the Philippines and Romania2, along with information and case studies from other
countries. It is the first time that information on street children and juvenile justice has
been compiled into such a comprehensive publication. It builds on the experiences of a
wide range of individuals and organisations internationally, drawing together both theory
and practice into an innovative framework for overall reform.
It is aimed at anyone with an interest in these issues and in particular: policy-makers
in relevant government departments; personnel working in the various branches of
the justice system; NGO practitioners working with street children and/or on juvenile
justice issues; academics; human rights lobbyists; public and private donors; and
actors in the UN and regional human rights systems.
It includes:
• Descriptions - in the children’s own words - of the treatment they receive at
different stages of the criminal justice system;
• A framework of overarching concepts and recommended approaches to reform;
• An introduction to international human rights standards and guidelines on how to
use them;
• Practical examples of projects and approaches from around the world;
• Specific recommendations for improvement, including recommendations from
children themselves, targeted at different actors in the system.
GUIDING PRINCIPLES FOR THE WAY FORWARD
The book outlines an approach to reform based on certain key themes:
1
The need for a child rights-based approach
2
a
b
The need for an understanding of the following key concepts:
Each child is unique and requires an individualised approach
Interventions should take into account the concept of choices, limited
choices and non-choices available to children
Relationship-building is key to reform
The role of the community is essential
There needs to be a better understanding of, and respect for, children’s
resiliency and their peer relationships
c
d
e
3
•
•
•
•
2 See Appendix 1 for further details of the CSC
project Promoting and Protecting the Human
Rights of Street Children in Juvenile Justice
Systems, 2002-2004.
12
The need for interventions in the following four priority areas:
prevention
separation of criminal justice and social welfare systems
diversion
alternatives to detention
These themes are described in more detail in Chapter 2 and will be drawn on throughout
the book, demonstrating how lack of understanding of these issues contributes to the
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problems currently experienced by street children in criminal justice systems and how
increased understanding of these issues contributes to their solutions.
1
DEFINITION ISSUES
DEFINITION OF THE TERM ‘CHILD’
For the purposes of this book, the term ‘child’ refers to any person under the age of 18,
in line with the use of the term in the UN Convention on the Rights of the Child (Art.
1). However, given the significant age differences covered by this term, ‘adolescent’
and ‘young person’ are also used to refer more accurately and respectfully to older
‘children’ under the age of 18.
The term ‘street children’ has both positive and negative connotations. It can label and
stigmatise children or it can provide them with an identity and a sense of belonging.
It can include a very wide range of children who: are homeless; work on the streets
but sleep at home; either do or do not have family contact; work in open-air markets;
live on the streets with their families; live in day or night shelters; spend a lot of time
in institutions (e.g. prison).
Examples of definitions of ‘street children’ include:
• “…those for whom the street (in the widest sense of the word: i.e. unoccupied
dwellings, wasteland etc.) more than their family has become their real home, a
situation in which there is no protection, supervision or direction from responsible
adults”.3
• ‘children of the street’ (those with limited or no family contact who often actually
sleep on the street), also referred to as ‘street-living’ or homeless children and
‘children on the street’ (those who maintain family contact and return home in the
evenings), also referred to as ‘street-working’ children.4 However, practitioners are
increasingly critical of this broad binary division.
“
Everyone calls us
tokais (scavengers)
or beggars. Hardly
anyone calls us by
our own names.
(BANGLADESH) *
“
WHO ARE ‘STREET CHILDREN’?
*8-year-old-boy quoted in Zaman Khan, S.,
Herds and Shepherds: The issue of safe custody
of children in Bangladesh, Bangladesh legal Aid
and services Trust (BLAST) and Save the
children UK, June 2000, p12.
• Alternative terms such as ‘street-involved children’ are being used by some
organizations to more accurately describe the spectrum of relationships in which
children engage within the socio-economic, cultural and physical space of the
street environment. For example, one NGO working in Mexico and Ecuador takes
the term ‘street-involved’ to mean “street-living, street-working, street market
children and their families and people for whom the street plays a defining role in
their lives in the way that spaces such as office or school would in someone else's
life (and that of their family).”5
For the purposes of this publication, the author acknowledges the limitations and
many connotations, both positive and negative, of the term ‘street children’, but – in
the absence of a widely acceptable alternative - uses the term for convenience, on the
understanding that in reality, street children defy such convenient generalisations
because each child is unique. Definitions of ‘street children’ in different contexts must
take into account the child’s own perceptions of their individual circumstances and
how they themselves wish to be described.
WHAT DO WE MEAN BY ‘JUVENILE JUSTICE SYSTEMS’?
The scope of ‘juvenile justice’ can vary. For the purposes of this book, juvenile justice
is understood to comprise not only the treatment of children in conflict with the law,
but also the need to address the root causes of offending behaviour and implement
measures to prevent such behaviour. As identified by Roy and Wong (2004), there are
two major strands of work under this broad definition:
• Prevention – in order to ensure that children do not come into conflict with the law
in the first place and therefore do not come into contact with the formal criminal
justice system, and
3 Definition formulated by the Inter-NGO
Programme for Street Children and Street Youth,
cited in Ennew, J., Street and Working Children:
A Guide to Planning, Save the Children, London,
1994, p.15.
4 Ibid.
5 JUCONI (Junto con los Niños),
www.juconi.org , email communication with
Consortium for Street Children, 25 February
2003. JUCONI in turn adopted the term from the
Canadian International Development Agency in
CIDA’s Action Plan on Child Protection:
Promoting the Rights of Children who Need
Special Protection Measures, June 2001, p.10.
13
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• Protection – of children who are already in conflict with the law from human rights
violations, focusing on their development in order to deter them from re-offending
and to promote their rehabilitation and smooth their reintegration back into
society.6
In theory a ‘juvenile justice system’ is made up of the legislation, processes,
institutions and personnel involved in the treatment of children accused of
committing a criminal offence. Due to the specific needs and circumstances of
children, this needs to be distinct from the workings of the regular adult criminal
justice system. However, in reality there are three problems with the term ‘juvenile
justice system’:
1 There is no one single ‘system’ but a complex mixture and overlap between
many different systems: children pass through processes, institutions and
personnel from a variety of different government departments, agencies and
organisations such as the police, social welfare and probation departments,
judiciary, lawyers, detention centres and prisons. Although these systems are
supposed to be interrelated, coordinated and interdependent, in reality each sector
has its own mandate, budget authority, regulations, governing body and political
agenda. “Each one may act with the best of intentions and totally within its
guidelines, but the effect of so many agencies making individual (or at best
bilateral) decisions is that a ‘non-system’ is formed. In other words, there is no
‘complex whole formed by interactive, interrelated, interdependent parts.’
Complex, yes, but system, no.”7 Understanding and respecting this complexity is
key to implementing reform.
2 In some countries, even if a separate ‘system’ for the treatment of children
(as opposed to adults) exists in theory, in practice children are often still
processed through the adult criminal justice system. The term ‘juvenile
justice system’ may therefore be misleading and this report often refers more
accurately to the ‘criminal justice system’ in certain situations.
3 The term ‘juvenile’ is increasingly being criticised in international human
rights circles as it is seen as a stigmatising label which detracts from the fact
that the individuals in question are children and adolescents, entitled to
special treatment and understanding, according to standards outlined in the UN
Convention on the Rights of the Child and other instruments. Organisations such
as Save the Children UK now use the term ‘child justice’ as opposed to ‘juvenile
justice’ to reflect these policy concerns. However, this shift in terminology has been
developing over the past few years and, whilst appreciating current trends, the
term ‘juvenile justice’ is still used in the title and other places throughout this
publication as it is more widely recognised.
UNPACKING THE TERM ‘CHILDREN IN CONFLICT WITH THE LAW’
It is essential to understand from the outset that not all street children in criminal
justice systems are criminals, but rather fall into three very different groups:
1 Children in actual conflict with the law: Some street children do engage in
criminal behaviour ranging from minor to serious offences. These street children
are in conflict with the law.
6 Roy, N. and Wong, M., Juvenile Justice
Review and Training Documents prepared for
Save the Children UK, 2002-3.
7 Feely, F., Collaboration and Leadership in
Juvenile Detention Reform, publication No. 2 in
the series Pathways to Juvenile Detention
Reform, Annie E. Casey Foundation, p.10. See
also Abramson, B., ‘Juvenile Justice: The
‘Unwanted Child’ - Why the potential of the
Convention on the Rights of the Child is not
being realized, and what we can do about it’,
August 2003.
14
2 Children in perceived conflict with the law: Others may be arrested for
activities that are officially criminalised in legislation but which the international
human rights community calls for to be decriminalised as a matter of urgency. For
example, street children are arrested for being victims of commercial sexual
exploitation, for begging, ‘vagrancy’ and for ‘status offences’ such as truancy,
‘running away from home’, and being ‘beyond parental control’. In these cases,
although technically in conflict with the law, children in this category are actually
victims of legislation that needs urgently to be reformed.
3 Children in need of care and protection: Some street children do not engage in
criminal behaviour. Nevertheless, they may still be arrested randomly and illegally,
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on prejudiced suspicion of being involved in criminal behaviour, or they may be
detained ‘for their own protection’. In some countries, in the absence of adequate
social welfare responses, the criminal justice system is used to warehouse
homeless children regardless of whether or not they have committed a crime.
1
The findings from the Consortium for Street Children project show that the vast
majority of street children processed through justice systems fall into categories (2)
and (3) in contrast to public opinion that generally sees them as criminals.8
WORDS MATTER: TERMINOLOGY USED IN THIS BOOK
Stressing the use of child-sensitive terminology and unless quoting references and
identifying the titles of previous researches, words and phrases such as ‘minor’,
‘juvenile’, ‘youthful offender’ and ‘juvenile delinquent’ have been avoided in this
publication. This is due to their negative and prejudicial connotations or the fact that
they detract from the reality that the individuals involved are first and foremost
children and adolescents. These terms have been replaced with more accurate
references to ‘child’, ‘adolescent’, ‘young person’, ‘child in actual conflict with the law’,
‘child in perceived conflict with the law’ and ‘child in need of care and protection’.
GENDER
The testimonies and experiences cited throughout this book come from both girls and
boys. However, it is important to highlight at the outset the particular gender
imbalance in the criminal justice system and the implications this has for reform
interventions.
THE GENDER IMBALANCE
Amongst street-living children, girls are in a minority (estimates range between 3 and
30%, depending on the country in question9). This massive over-representation of
boys living on the streets is carried over into the criminal justice system. For example,
in Albania there were 386 boys sentenced in 1998 but only one girl.10 This low
percentage of girls may be accounted for by their relative minority presence on the
streets in the first place (due to cultural and social factors) as well as differences in
some countries in the way girls are processed through the system – for example in
Pakistan it is reported that girls are more likely to be diverted from the system at
police stations11 and in general girls are less likely to be prosecuted or to be given a
custodial sentence than boys.12 “However, it is not clear to what extent these
differences derive from more lenient treatment, from a lack of facilities available for
female offenders, or from the divergent patterns of offending behaviour displayed by
boys and girls.”13 Nevertheless, this gender imbalance in the criminal justice system
has major implications for the treatment of both girls and boys.
PROBLEMS FACED BY GIRLS
As criminal justice systems are traditionally orientated towards boys, girls are particularly
vulnerable to human rights abuses. For example, due to lack of space in many police and
detention facilities girls are often held in detention with female adults. Furthermore,
limited numbers of female staff in the criminal justice system makes girls vulnerable to
inappropriate handling and sexual abuse, particularly by law enforcement personnel.
Because of their ‘non-normative’ sexual activity on the streets (possibly involving multiple
partners, ‘survival’ sex in exchange for food, shelter and protection, and the difficulty in
drawing boundaries between this and sexual abuse and commercial sexual exploitation14),
street girls suffer a perceived loss of rights over their bodies. This is compounded by
gender stereotypes in male-dominated cultures which define these girls as not ‘nice girls’.
Combined with a general taboo around sexually active children, especially girls, and even
a fear of them, this results in exceptionally high levels of sexual violence against street
girls.15 Finally, in general, “prisons are ill equipped to deal with young women who are
damaged and who display extremely challenging and difficult behaviour. The numbers of
juvenile girls within the system are small and as a result they are simply tacked onto the
rest of the system with little recognition that their needs are different and separate from
older women. It also means that they attract fewer resources…”16
INDIA: street and working
children’s protest rally in 1995,
featured on the cover of Juvenile
Justice: Report on the National
Seminar 8-9 April 1999, New
Delhi by Butterflies (edited by
Rita Panicker) © Butterflies
8 For example, in Nairobi, Kenya for the month
of November 2001, the Juvenile Court Register
indicates that 85% of children passing through
the court were ‘charged’ with being ‘in need of
care and protection’.
9 1991 study, quoted in Barker, B. and Knaul, F.,
Urban Girls: Empowerment in Especially Difficult
Circumstances, 2000, p. 8.
10 Data from Ministry of Public Order, quoted in
Hazizaj, A. and Barkley, S.T., Awaiting Trial: A
Report on the Situation of Children in Albanian
Police Stations and Pre-Trial Detention Centres,
Children’s Human Rights Centre of Albania
(CRCA), May 2000, p.63.
11 AMAL Human Development Network and
Consortium for Street Children, Street Children
and Juvenile Justice in Pakistan, February
2004.
13 Ibid.
14 See Barker, B. and Knaul, F., Urban Girls:
2000, p.17.
15 Wernham, M., Background Paper on Street
Children and Violence, Consortium for Street
Children, updated 16 November 2001.
16 The Howard League for Penal Reform (UK)
cited in Roy, N. and Wong, M., Juvenile Justice
15
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PROBLEMS FACED BY BOYS
“
The penal system,
adult and juvenile, is
the most heavily
gendered institution
in society 18
Discussions around gender in relation to juvenile justice often highlight the particular
problems faced by girls. However, “overall, neither the human rights movement nor
the CRC movement is treating imbalances in the well-being of males as a human rights
issue, or even a ‘gender issue’”.17 Abramson points out that, despite evidence that “the
penal system, adult and juvenile, is the most heavily gendered institution in society”,
little – if anything – is being done by governments and child rights advocates to
address the reasons why boys are so at risk in this area. He goes on to add that the
general unpopularity or apparent lack of interest in addressing issues that
disproportionately affect boys, rather than girls, is one of the most important reasons
for the marginalisation of juvenile justice issues in the human rights movement.18
THE NEED FOR GENDER-SENSITIVE INTERVENTIONS
“
Any reform of the criminal justice system therefore needs to take into account this
gender imbalance in order to ensure that interventions are appropriate and effective.
For example:
17 Abramson, B., ‘Juvenile Justice: The
August 2003.
18 Ibid.
19 Barker, B. and Knaul, F., Urban Girls 2000,
p.9.
20 This is born out by reports from Guatemala,
Bolivia and the USA in ibid, p.9.
22 For example, street children in Nigeria
commented on the perceived preferential
treatment received by girls as opposed to boys
in detention: they felt that girls were given less
harsh punishments than the boys and were
“spoken to nicely, advised and treated as if they
are the officers’ own children”. Human
Development Initiatives and Consortium for
Street Children, Street Children and Juvenile
Justice in Lagos State, February 2004.
24 Email communication with Bruce Abramson,
May 2004.
16
• Prevention programmes need to address why boys are more at risk than girls of
coming into conflict with the law and accordingly identify and mobilise protective
factors which are gender-specific;
• The minority of girls in the system need to be protected through the provision of
adequate gender-sensitive staffing, facilities and services (including gendersensitive health services);
• Psychosocial and rehabilitation interventions with girls and boys need to take
into account differences due to gender (e.g. research has shown that street
migration for girls is more traumatic and the rupture more permanent than for
boys; programmes in Kenya, Senegal, Bolivia, Brazil and Guatemala report that
girls on the street display more psychological damage than boys – a combination of
both sexual abuse and rupture in the family19 ; the internalisation by girls of the
effects of domestic violence, sexual abuse and family break-up may find expression
in violent behaviour, depression, withdrawal and self-mutilation20; girls appear to
grow out of crime more successfully and at an earlier age than is the case with
boys21 - all of which have significant implications for professional counselling,
family reintegration and other programmes);
• Programmes sensitising detention centre staff on methods of discipline which
are not abusive or humiliating need to take into account any differences in the
ways in which girls and boys are treated;22
• Facilities for a full range of community penalties should be available to girls as
well as boys in the local area, including community punishment orders and
attendance centre orders. This might involve:
o ensuring that provision is in place to avoid the necessity of placing single girls
alone with a group of boys;
o developing attendance centres for girls where these do not exist;
o providing child-care facilities where these are needed.23
In short, “a gendered problem needs a gendered solution – regardless of the
subject, and irrespective of which sex is on the winner/loser side of things.”24
Practitioners must address the socio-economic and cultural factors that result in
the massive over-representation of boys in the system whilst at the same time
ensuring that service delivery does not discriminate against the female minority
and that the particular needs of girls are not overlooked.
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Chapter summary
1
This book aims to fulfil the need for comprehensive, consolidated information
on theory and practice in relation to street children and juvenile justice in
order to contribute towards urgently needed reform.
This reform is based on a three-part framework which includes:
• a child rights-based approach;
• an understanding of the five key concepts of: an individualised approach,
choices, relationship-building, the role of the community and better
understanding of, and respect for, children’s resiliency and their peer
relationships;
• priority attention to the four areas of prevention, separation of criminal
justice and social welfare systems, diversion and alternatives to detention.
Terminology used to refer to girls and boys in these situations needs to be
gender-sensitive, child-friendly and accurate.
Boys are massively over-represented in the criminal justice system and this
has implications for the treatment experienced by both girls and boys in the
system as well as for interventions aimed at reform.
17
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2
GUIDING PRINCIPLES
FOR THE WAY FORWARD
Chapter overview
18
•
Explains the three-part framework for reform in detail.
1
Outlines the need for a holistic and child rights-based approach to
reform that balances specific international human rights
standards on juvenile justice with an overall vision of the five
umbrella rights of the UN Convention on the Rights of the Child –
which are introduced through a practical programming tool called
the ‘Table Leg Test’.
2
Explains each of the five key concepts of:
– An individualised approach – explaining the negative impact
of criminalisation and stereotyping of street children on policies
and treatment of children (illustrated by case studies from
Nicaragua and Brazil), and highlighting issues relating to racial
and ethnic discrimination (case study from Bulgaria);
– Addressing street children’s choices, limited choices and nonchoices through the 3-stage ‘choice process’: understanding
choices children have made, expanding the choices available to
them and empowering them to make those choices;
– Relationship-building in the context of the five pillars of the
justice system (law enforcement, prosecution, courts, correction
and community) with emphasis on the need for sensitization and
collaboration, supported by examples of sensitization work with
the police in India and the Philippines;
– The importance of the role of the community;
– Better understanding of, and respect for, children’s resiliency
and their peer relationships – outlining the concept of resiliency
and giving specific examples in relation to street children and
juvenile justice from the Philippines.
3
Calls for priority attention to the four areas of prevention,
separation of criminal justice and social welfare systems,
diversion and alternatives to detention.
Chapter 2: Guiding principles for the way forward
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THE 3-PART FRAMEWORK FOR REFORM
A) CHILD RIGHTS-BASED APPROACH TO REFORM: A HOLISTIC
APPROACH TO THE UN CONVENTION ON THE RIGHTS OF THE CHILD (CRC)
A.1 WHY DO WE NEED A HOLISTIC APPROACH?
Reform of juvenile justice systems (or multiple, overlapping systems / ‘non-systems’4)
can take many different approaches. As with a tangled knot, there are problems in
many areas and yet pulling at the knot in some areas may actually make matters
worse. For example, attention to conducting physical repairs of detention centres may
divert attention and resources away from programmes to ensure that children don’t
end up in detention in the first place. Improving parts of the system without analysing
the whole can result in making bad processes function even more efficiently! This
problem has also been described as the ‘balloon effect’ in juvenile justice reform: “we
grab a hold of one part of the problem, and it bulges out somewhere else”.5 Difficult
decisions need to be made in the context of scarcity of resources, conflicting interests,
lack of political will and negative media influence. It is therefore useful to have a
common framework to refer to in order to help simplify complex decision-making.
“
I wish that our
community and
government would
love us and guide us
and not be ashamed
of us. 1
“
As borne out by the testimonies of street children in the justice system, comprehensive
reform is essential and urgent. This reform is proposed here in the form of:
A) an overarching child rights-based approach
B) a focus on five key concepts, and
C) intervention in four priority areas.3
I hope others would
not go through this
experience. 2
A.2 SPECIFIC CRC ARTICLES RELEVANT TO JUVENILE JUSTICE
Over the past 10 years or so, increasing attention has been given to the CRC and other
international human rights standards as the common framework in juvenile justice
reform and this will be examined in detail in Chapter 3. However, whilst capitalising on
the detailed guidance available in, for example, Article 40 of the CRC, there is also a need
to adopt the broader perspective offered by the CRC as a whole, rather than focusing on
isolated articles. This is particularly important with regard to the wider spectrum of socioeconomic rights which are essential to programmes on prevention, separation of criminal
justice and social welfare systems, diversion and alternatives to detention. To illustrate
this point, and to encourage broader use of the CRC, some of the other CRC articles that
are relevant to juvenile justice are highlighted alongside the diagram on the following
page and in the detailed discussion of the CRC in Chapter 3. However, it should be
remembered that taking into consideration a longer list of articles will not necessarily
result in a more holistic approach. Rather than just expanding the ‘shopping list’ of
individual articles relevant to juvenile justice, we need to step back and consider the full
‘meal’ that we are trying to prepare with the ‘ingredients’.
A.3 FIVE CRC UMBRELLA RIGHTS 6
The CRC was written to be read integrally, not as a shopping list, every article being
underpinned by the five umbrella rights of the CRC:
•
the best interests of the child
•
non-discrimination
•
participation
•
implementation (including of economic, social and cultural rights to the
maximum extent of available resources)
•
the right to life, survival and development
Together these principles make up the child-rights based approach, that is: an
approach which sees each child as unique and equally valuable (non-discrimination
– Art. 2) human beings, with the right not only to life and survival, but also to
development to their fullest potential (Art. 6), offering the best understanding of
anyone of their own situation / with essential experience to offer (participation –
Art. 12), who deserve to have their best interests met (Art. 3) through adequate
allocation of resources and implementation of all the rights in the CRC (Art. 4).
1 Child participants quoted in UP CIDS PST,
Painted Gray Faces, Behind Bars and in the
Streets: Street Children and Juvenile Justice
System in the Philippines, Quezon City, UP CIDS
PST and CSC, 2003, p.142.
2 Ibid, p.116.
3 Penal Reform International has developed a
‘10-Point Plan’ for the reform of juvenile justice
in general and this is included as Appendix 4.
Reform, Annie E. Casey Foundation, p.10.
5 Abramson, B., ‘Juvenile Justice: The
August 2003: “One of the reasons for the
balloon effect is that changes in one system put
pressure on the other interlocking systems, and
these other systems push back, defeating the
reform, or creating new problems. This is why
we must address “juvenile justice” not as a
system but as a set of over-lapping systems.”
6 For many years the CRC has been analysed
in terms of the ‘four principles’ (the best
interests of the child, non-discrimination,
participation and the right to life, survival and
development). However, this approach has been
criticised for marginalising the importance of
Article 4 (on implementation and resources –
especially for economic, social and cultural
rights) and for terminology that weakens the
strength of the four articles in question: the
best interests of the child, non-discrimination,
participation and the right to life, survival and
development are rights rather than mere
principles. The term ‘rights’ carries a greater
psychological and legal weight and more
accurately represents states’ legal obligations
regarding implementation whereas ‘principles’
are subject to being outweighed by other
‘principles’. The term ‘umbrella rights’ was
coined by Bruce Abramson to refer to Articles 1,
2(1), 3(1), 4 and 5 of the CRC and has been
adapted here to refer to articles of the CRC
which reflect a more programmatic as well as
legal focus. See Abramson, B., ‘Two Stumbling
Blocks to CRC Monitoring: the Four “General
Principles” and “the Definition of the Child”,
September 2003.
19
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Practical tips
INTRODUCING THE ‘TABLE LEG TEST’
These five umbrella rights are illustrated in the diagram on the following page in the
form of the ‘Table Leg Test’. This illustrates how the best interests of the child, nondiscrimination, participation and implementation (including of economic, social and
cultural rights) underpin the ultimate goal of the CRC: the right to life, survival and
development. The ‘Table Leg Test’ can act as a simple reminder in the design and
implementation of any proposed reforms.
It can act as a checklist, by asking at every stage of the process: ‘Is the table
stable?’ - i.e.
• Have each of the five umbrella rights been considered?
• Is this proposed reform in the best interests of the children?
• Does it safeguard their survival and actively contribute to their development?
• Have the children themselves been involved in planning and implementing it?
• Is it reaching / taking into consideration the needs of all children, without
discrimination against particular groups?
• Are there adequate resources available?7
Underpinning the specific details of Articles 37 and 40, and the other UN guidelines,
with this simple and holistic approach as a constant reminder may help in the
following two ways:
To give an overview of / take a step back from the ‘tangled knot’ in order to
identify where interventions are most needed overall (separation of social
welfare and criminal justice systems, prevention, diversion and alternatives to
detention). For example:
• Is it in the best interests of the children to focus on reform of release
mechanisms such as bail, or on healthcare in detention at this stage?
• Which of the options best addresses the children’s right to life, survival and
development?
• Are police training materials addressing the particular discrimination against
street children and ethnic minorities which is bringing them into the system in the
first place?
• Have the children themselves participated in articulating problems in the system
and been given the opportunity to contribute to solutions?
• Which areas are most in need of the government allocating sufficient resources
and political will to ensure implementation?
1
To guide planning of specific reforms and programmes - i.e. once priorities
have been identified from a holistic perspective, specific programmes need to be
based on the five CRC umbrella rights which can then be supported by other, more
specific articles. This is the also case even in urgent, short-term reform initiatives and
where processing through the formal system cannot be avoided (i.e. improving
conditions in detention). For example:
• In detention the children’s right to life, survival and development needs to be
met through adequate health (including mental health) and education services as well
as anti-violence and other protection policies and training, all of which need to be
adequately resourced;
• The best interests of children in detention are better served by not using denial
of family visits as a punishment;
• Awareness-raising and sensitisation of staff regarding non-discrimination
policies should ensure that offensive language is not used by police and prison staff
against (e.g.) street girls and ethnic minorities;
• The children themselves will have the best perspective on which reforms are most
urgent and should therefore be encouraged to participate as much as possible in the
planning of projects as well as their implementation where possible (e.g. if it is in
their best interests, can the children be involved in helping to conduct physical repairs
on buildings in order to develop their practical skills?)
2
7 “It is not acceptable for inter-governmental
bodies or states to promote multi-million dollar
development projects without earmarking a
portion for the progressive upgrading of the
penal system, not when we consider the levels
of inhumanity that we find in the juvenile and
adult systems throughout the world. Economic
development fuels social disruptions, like
migration and changes in family structures, and
disruption of the social fabric will lead to
additional crime; that’s the human condition. A
holistic, human rights approach will anticipate
these problems, and will ensure that
developmental packages have dedicated a
certain portion to the rehabilitation of the penal
system.” Abramson, B., ‘Juvenile Justice: The
August 2003.
20
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2
B) KEY CONCEPTS
3
4
5
Each child is unique and requires an individualised approach
Interventions should take into account the concept of choices, limited
choices and non-choices available to children
Relationship-building is key to reform
The role of the community is essential
There needs to be a better understanding of, and respect for, children’s
resiliency and their peer relationships
B.1 EACH CHILD IS UNIQUE AND REQUIRES AN INDIVIDUALISED
APPROACH
Victims, villains or heroes?
Many images and stories portray street children either as helpless victims, dangerous
criminals or heroic survivors. The reality is usually somewhere in between. They
show incredible resiliency and initiative in the face of desperate circumstances. They
have to be resourceful and strong in order to survive, but some do not survive. Others
can only do so by breaking the law. Despite our generalisations, only by respecting
their individual stories and characteristics can we understand and effectively address
the causes of the problems they face.9 Each child is unique and “even those living or
working in the streets, are complex human beings with hopes and dreams whose
problems need to be examined holistically, in relation to the individual circumstances
in which they find themselves.”10 In terms of juvenile justice system reform, this
entails developing a range of options for intervention such that the most appropriate
is implemented in individual cases. It also entails combating the generalised negative
public perception of street children as criminals and/or as inferior beings, less
deserving of respect and rights than others – an attitude which results in bringing
children – often unjustly - into contact with the criminal justice system in the first
place, and which impacts very negatively on their treatment once within the system.
“
“
1
2
I am bad… I am
helpful too.
(PHILIPPINES) 8
8 UP CIDS PST, Painted Gray Faces, Behind
Bars and in the Streets: Street Children and
Juvenile Justice System in the Philippines,
Quezon City, UP CIDS PST and CSC, 2003, p.120.
9 Adapted from Wernham, M., text from
Consortium for Street Children and EarthAction
campaign, ‘You are Seven and You are Not Safe:
End Violence Against Street Children’ campaign,
2003. www.earthaction.org
21
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Criminalisation, stereotyping and dehumanisation of street children
“
You have no one to
take care of you.
Nobody in the
society respects you
or wants to see
you… People don’t
care whether you
die, whether you live.
(KENYA) 12
“
There is no love for
us in this society.
(PAKISTAN) 13
22
Not only are street children (especially those who actually live on the streets) an
embarrassing, visible reminder of a society’s failure to provide for and protect its most
vulnerable children, but they are also considered by many to be a criminal threat to
that very society. It is therefore easy and more comfortable to either not see them at
all, to fear them as dangerous outlaws (or well on their way to becoming dangerous
outlaws) or to see them as less than human. This perception results in them being
transposed from ‘children’ to ‘street children’ to ‘criminals’ deserving of ill-treatment
in the public’s mind, the most extreme manifestation of which are the death squads
and vigilantes made famous in Latin America. Criminalisation and, to a lesser extent,
dehumanisation are dangerous threats posed to vulnerable children in that they
absolve people, especially the authorities, of the obligation to accord them their
human rights.11
Criminalisation, stereotyping and dehumanisation impact on street children at both a
collective and individual level and constitute the most significant underlying factors
influencing their treatment in the criminal justice system: such negative
generalisation and stereotyping obscures the individuality of boys and girls who live
and work on the street and thus leads to inappropriate and often abusive blanket
responses from the criminal justice system. The following diagram illustrates the
criminalisation, stereotyping and dehumanisation process and how it affects the
treatment of street children in the criminal justice system. For example, at the
collective level, the influence of negative public opinion on local and national politics
helps to shape discriminatory policies and legislation. This same negative public
opinion, often fuelled by sensational media reporting, helps to foster a culture of
impunity where human rights violations against street children such as police
brutality, arbitrary arrest, ‘round-ups’ and even death squads are tacitly condoned - or
even actively encouraged. Criminalisation and dehumanisation at both the collective
and individual level are inseparably linked: public opinion is shaped by the actions
and attitudes of individuals and vice versa. This interrelationship is examined in more
detail below along with the implications it has for reform interventions.
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B.1.a) CRIMINALISATION, STEREOTYPING AND DEHUMANISATION AT THE
COLLECTIVE LEVEL: MEDIA AND PUBLIC OPINION
Misconceptions are often based on the lack of objective, systematic and accurate
statistics on juvenile crime, and the failure to distinguish between the causes and
seriousness of offences. In other words, there is often a failure by the authorities, the
media and the public to take into account why children and adolescents commit some
crimes in the first place. For example, they may be victims of exploitation by others,
the crimes may be status offences or may be necessary for the children’s survival on
the street. There is also a lack of detailed categorization of offences – for example the
fact that stealing a piece of bread or fruit from a vendor, or sneaking into a building to
sleep may be categorized alongside much more serious crimes of theft and breaking
and entering. In short, there is a failure to assess incidents on an individual, case by
case basis. Combined with the lack of reliable statistics in relation to juvenile crime
(due to lack of infrastructure, poor training, lack of systematised data collection
methods, inconsistent categorisation of crimes and political manipulation of statistics)
“this leads to unwarranted exclusion, suspicion, exaggeration of risk, marginalisation,
unnecessary fears and overconfidence in methods which fail to correct.”15
One of the main influences on public opinion is the media and inaccurate,
unrepresentative and sensationalist reporting contributes to the criminalisation of
children and young people: “Alarming messages on increasing juvenile delinquency
and thus for some people, possible obstacles for a full recognition of children as
bearers of human rights, are not always based on sound information but are often
emotional expressions related to isolated but indeed shocking events, such as
homicide or murder committed by young children.”16 The media can therefore fuel
public fear and condemnation of street children. This public fear impacts directly on
local and national politics, informing discriminatory, repressive and punitive policies
and practices against street children as shown in the examples below.
“
Everyone calls us
tokais (scavengers)
or beggars. Hardly
anyone calls us by
our own names.”
“If we walk before a
shop in the morning,
some say ‘Our day is
ruined, we have seen
the face of tokais in
the morning.
(BANGLADESH) 14
“
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Case study
THE NICARAGUAN CHILDREN AND ADOLESCENTS’ CODE IN DANGER
One of the key concerns highlighted by CSC partner Casa Alianza Nicaragua during the
Street Children and Juvenile Justice Project is how public pressure is threatening the
status of the progressive and child-friendly Children and Adolescents’ Code (1998).
Tension has arisen over the fact that, in line with international standards on juvenile
justice, the Code makes it very difficult for judges to detain children and adolescents.
However, the problem lies in the fact that resources have not been allocated to implement
in practice the alternative sanctions that are provided for in theory. The result is that, left
with no alternative, judges end up releasing children who have actually committed
crimes. This in turn fuels public frustration with the following results:
Public vigilante retribution against street children: for example, on a mission to
Managua in April 2002 as part of the Street Children and Juvenile Justice
Project, CSC accompanied Casa Alianza outreach workers and witnessed them
providing first aid treatment to a boy who had been slashed on the back of the heel
with a machete by a market stall owner who had caught him stealing;
1
Police use of punitive and illegal detention in police cells as a ‘short, sharp
shock’ way of short-cutting the judicial system which is perceived to be failing
to deliver justice;
2
Sporadic parliamentary proposals, such as that made in 2002, arguing for the
suspension of the Code altogether, and a widening in the scope of crimes for
which children may be detained. According to Casa Alianza, although this particular
proposal failed, as long as the Code continues to be improperly and partially
implemented, the rights of children within the justice system in Nicaragua will remain
in jeopardy.17
3
11 Adapted from Ibid.
12 Girl participant, CRADLE / USK / CSC
National Workshop on Street Children and
Juvenile Justice, Nairobi, Kenya, 6-7 March
2003.
13 Participant at the Pakistan National
Conference on Street Children and Juvenile
Justice, 13-14 June 2003.
14 Two boys, aged 8 and 11, quoted in Zaman
Khan, S., Herds and Shepherds: The Issue of
Safe Custody of Children in Bangladesh,
Bangladesh Legal Aid and Services Trust
(BLAST) and Save the Children UK, June 2000,
p.12.
15 Giles, Prof. G.W., Turbulent Transitions:
Delinquency and Justice in Romania, Bucharest,
March 2002, p.285.
16 Cappelaere, G., ‘Juvenile Justice 10 years
after the Convention on the Rights of the Child
(CRC): Some Reflections for Hopeful
Perspectives’, in Butterflies, My Name is Today,
Vol. X., No. 2, Special Issue: ‘Children in Conflict
with the Law’, 2003, p.20.
17 See Casa Alianza Nicaragua and Consortium
for Street Children, Street Children and Juvenile
Justice in Nicaragua, February 2004 for more
details.
23
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Case study
“
Police see [street
children] as a threat
to the tranquillity of
society; misjudge
them as thieves and
troublemakers”; “I
had to go to sleep
on an empty
stomach and got
beaten up by the
‘dadas’ (bullies) and
policemen.
(NEPAL)
21
The government
curses us. They
curse us badly—
curses of religion, of
mothers, of fathers.
“
(EGYPT) 22
THE BATTLE AGAINST LOWERING THE AGE OF CRIMINAL
RESPONSIBILITY IN BRAZIL
Street children are considered to be “a blemish on the urban landscape and a reminder
that all is not well in the country. Unwanted and considered human waste, these
ubiquitous tattered, mainly black children and adolescents evoke strong and
contradictory emotions of fear, aversion, pity and anger in those who view their
neighbourhood streets, boulevards and squares as ‘private places’ under siege”.18 In
addition to vigilante and police violence and death squads, this negative public opinion
and fear of street children in Brazil has resulted in strong public resistance to the
urgently needed reforms which are required to implement the country’s progressive
child rights-friendly legislation: the Statute of Children and Adolescents (ECA).19 An
example of this is the ongoing intense public and political pressure to lower the age of
criminal responsibility in Brazil. This would enable the authorities to put children and
adolescents straight into adult prisons rather than the current system of detention in
‘Centres for Socio-Education’ (even though in some states conditions in these centres
are appalling, and are to all intents and purposes similar to prison). Reliance on
detention, even in these so-called ‘socio-educative’ centres, flies in the face of
extensive evidence exposing the appalling cycle of violence and human rights
violations against children in detention, (see case study ‘Brazil:
‘A Waste of Lives’: Cycles of violence in detention’ in Chapter 6 for more details).
Detention of children in adult prisons is even worse. The movement to lower the age of
criminal responsibility is due in part to an inaccurate perception that violent youth
crime is prevalent, although it is stated that only 10% of all illegal acts are committed
by adolescents, and these acts are more often crimes against property than against
people.20 NGOs throughout Brazil have been lobbying intensively against this move.
Further examples of the influence of public opinion can be seen in the phenomenon
of ‘roundups’ or ‘street cleaning’ operations and death squads which are examined in
more detail in Chapter 6.
B.1.b) CRIMINALISATION, STEREOTYPING AND DEHUMANISATION
AT THE INDIVIDUAL LEVEL: RELATIONSHIPS
Failure to regard street children as individual children first and foremost, (each
defined by their unique personality traits, life stories, hopes and aspirations)
contributes to the blanket discrimination suffered by them in the criminal justice
system. In the same way that the negative impact of public opinion contributes to a
hostile political and legislative climate as seen above, criminal stereotyping and
dehumanisation are also integral to the majority of negative relationships experienced
by street children at an individual level in the justice system. For example, just as
collective public opinion can fuel a policy that encourages police round-ups of street
children in general, similar opinions held at an individual level can lead to treatment
such as beatings and verbal abuse:
18 Scheper-Hughes and Hoffman, 1994, quoted
in Inciardi, J.A. and Surratt, H.L., ‘Children in the
Streets of Brazil: Drug Use, Crime, Violence, and
HIV Risks’, Substance Use and Misuse, 1997,
pp. 9-10.
19 Inciardi, J.A. and Surratt, H.L., ‘Children in
the Streets of Brazil: Drug Use, Crime, Violence,
and HIV Risks’, Substance Use and Misuse,
1997, p.4.
20 Human Rights Watch, Cruel Confinement:
Abuses Against Detained Children in Northern
Brazil, April 2003.
21 Rai, A., Ghimire, K.P., Shrestha, P. and
Tuladhar, S., Glue Sniffing Among Street
Children in the Kathmandu Valley, Child Workers
in Nepal Concerned Centre, 2002, p.14 and
testimony of a 12-year-old boy in Kathmandu,
quoted on p.39.
22 Human Rights Watch, Charged With Being
Children: Egyptian Police Abuse of Children in
Need of Protection, February 2003, pp.17-18.
24
“Police see [street children] as a threat to tranquillity of society; misjudge them as thieves and
troublemakers”; “I had to go to sleep on an empty stomach and got beaten up by the ‘dadas’
(bullies) and policemen” (Nepal).21
In Egypt, Human Rights Watch reports that the police routinely use obscene and
degrading language to humiliate and intimidate children during arrests, especially
using terms such as ‘bastards’, ‘whores’, children of ‘whores’ or dogs, or making
references to children’s mothers’ sexual organs – all of which are pointed out as being
extremely offensive attacks on family and personal honour in Egyptian society.
According to one 17-year-old,
“The government curses us. They curse us badly—curses of religion, of mothers, of fathers”
(Egypt).22
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Street children’s experiences at different stages and with different actors in the
criminal justice system, as detailed in Chapter 6, illustrate in more detail the
treatment they receive at an individual level and how this treatment is often based on
lack of understanding and sensitivity and a failure to take into account their individual
circumstances: “They did not allow me to talk, or ask about my situation nor explain my
side [when they arrested me]” (Philippines).23
B.1.c) RACIAL AND ETHNIC DISCRIMINATION 24
Criminalisation and discrimination at both collective and individual levels can be
further fuelled by racism if street children are perceived as belonging to particular
racial or ethnic minority groups as illustrated by the following case study.
Case study
ROMA STREET CHILDREN IN THE CRIMINAL JUSTICE SYSTEM
IN BULGARIA
According to a 1996 Human Rights Watch report, between twelve and fourteen
thousand street children are estimated to live in cities throughout Bulgaria. “Most
street children are Roma [estimated 85%, possibly higher], for whom the
unemployment rate in Bulgaria is estimated to be as high as 90% in certain
neighbourhoods, and 70% on average. The Bulgarian national unemployment rate is
reported to be 12.5%. The depressed socio-economic status of Roma people coupled
with inadequacies in the Bulgarian educational system were often cited among the
reasons for children taking to the streets.” 25
“Roma are often perceived by the Bulgarian public to be a criminal element of
society. For these reasons, street children are often subject to extreme violence and
abuse at the hands of both skinheads and police. Police often harass and abuse the
children because they perceive them to be criminals, and skinhead gangs regularly
attack and beat the children because of their Roma identity.”26
‘A group of skinheads snuck up on us and surrounded us. They were cursing us and
saying ‘dirty Gypsies, we will kill you.’ We all started to run, but my brother was
caught. He was stabbed in the back with a knife. Then the skinheads ran away’
[17-year-old girl, Sofia].27
‘[T]he worst beating I got was in Pleven by the bus station. Six skinheads caught me
and started beating me and kicking me in the face with their boots. They knocked
my teeth out. I didn’t do anything to them. They beat me because I’m Roma’
[13-year-old boy, Pleven].28
In the words of one policeman: “…most of those kids are not Bulgarians, they’re
Roma.” “He went on to comment that street children steal, that their parents force
them to go out and beg, and that the children earn twice as much money as he
earns as a policeman. When questioned about physical abuse of the children, he
responded, ‘[o]f course if I catch a kid stealing, I’m going to kick his ass.’ The
significance of the ethnic identity of street children should not be underestimated in
police attitude toward, and treatment of, street children. Human Rights Watch
believes that Roma identity of street children may be a significant factor in their
treatment by police.” 29
“Street children, and Roma children generally, are particularly susceptible to
confinement in Bulgaria’s eleven Labour Education Schools. The Deputy Director of
Slavovitza Labour Education School observed that ‘80% of the children [at
Slavovitza] are Gypsies, mainly from large families. Most of them roamed the streets
before coming to us.’ It is estimated that Roma make up between 4 and 10% of the
general population, thus indicating massive over-representation in the system.” 30
“
A group of skinheads
snuck up on us and
surrounded us. They
were cursing us and
saying ‘dirty Gypsies,
we will kill you.’ We
all started to run, but
my brother was
caught. He was
stabbed in the back
with a knife. Then
the skinheads ran
away.
[17-YEAR-OLD GIRL,
SOFIA] .27
[T]he worst beating I
got was in Pleven by
the bus station. Six
skinheads caught
me and started
beating me and
kicking me in the
face with their boots.
They knocked my
teeth out. I didn’t do
anything to them.
They beat me
because I’m Roma.
“
STREETMANUAL1604.SW
[13-YEAR-OLD BOY,
PLEVEN] 28
23 Child from Manila, Philippines, quoted in UP
CIDS PST / CSC End of Project Report, 2003.
24 See Appendix 9 for further details on the
manifestation of racism and racial
discrimination in criminal justice systems and
ways in which to prevent and eradicate it.
25 Human Rights Watch, Children of Bulgaria:
Police Violence and Arbitrary Confinement,
September 1996, pp.2-3.
26 Ibid, p.3.
27 Ibid, p.32.
28 Ibid, pp.32-33.
29 Ibid, pp.17-18.
30 Ibid, p.5.
25
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Minority identity also affects access to complaints mechanisms: “These are
problems which anyone who has been a victim of crime might encounter, but it is
more so for the Roma people, who are less prepared to protest the irresponsibility of
the judiciary organs.” 31
Abusive treatment by police leads to a failure to report frequent racist attacks
(sometimes several times a week) by skinhead gangs to the police. “Almost all the
children we interviewed had suffered from such attacks. Despite the regularity of such
attacks, children reported receiving little or no assistance from police. Those who did
complaint to police said that police responded to their complaints with indifference,
disbelief, and even suspicion.” This fosters a culture of impunity for attackers. 32
B.1.d) RISING TO THE CHALLENGE
Criminalisation, stereotyping and dehumanisation result from a failure to understand
and treat each child as individual. Challenging these generalised, stereotyped
attitudes, at the levels of both public opinion and individuals, is therefore key to any
interventions to reform justice systems in favour of the most marginalised. The
challenges must be met through sensitisation, public education and – wherever
possible – breaking down the barriers between the children themselves and the
individual decision-makers in local contexts. The centrality of promoting children’s
individuality through sensitisation, relationship-building and children’s participation
in reform will be examined in more detail in Chapter 7.
B.2
CHOICES, LIMITED CHOICES AND NON-CHOICES
The second key theme to bear in mind in the context of juvenile justice reform is the
concept of choice. Based on experiences from organizations around the world,
something that emerges very clearly is that work at an individual level with street
children needs to be centred around choices. This approach can be seen as a threestage process of understanding, expanding and empowering.
Practical tips
THE 3-STAGE ‘CHOICE PROCESS’
31 Human Rights Project, a Bulgarian NGO,
quoted in Ibid, p.31.
Understanding choices: We need to understand, from their own
perspective, why individual children have made the choices they have: very often
they have been confronted by limited choices or ‘non-choices’, for example when a
boy or girl is faced with the dilemma: ‘Do I stay at home and continue to be abused by
my step-father, or do I take my chances of being abused on the street?’ Only once we
understand the background to a particular child’s situation can we attempt to identify
a suitable intervention that we can work with them to implement. In the context of
street children’s involvement in the criminal justice system, such choices or nonchoices may include: ‘Do I steal or go hungry?’; ‘Do I agree to have sex with the
policeman or let him arrest me?’; ‘Do I help in the older boy’s robbery or get beaten up
by him?’
1
Expanding choices: The next logical step is to help expand the choices
available to them, for example, offering the option of residential shelters as an
alternative to sleeping in a dangerous alleyway; the option of family reunification or
group living; the option of less hazardous employment; the option of self-protection
against sexually transmitted infections and HIV/AIDS; the option of someone to call in
times of trouble who can intervene at the police station. It may be that, due to socioeconomic and cultural constraints, there are fewer choices available to girls than boys
in a given situation and therefore particular efforts should be made to promote gender
equality in programming.
2
Empowering children to make choices: Even when choices are
expanded, it can be difficult for children make the transitions necessary to
implement those choices. The final stage is therefore empowering girls and boys to
3
32 Ibid, p.4.
26
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actually make, and carry through, their choices. This can be especially difficult in the
case of children who are not used to having this freedom through (e.g.) a history of
repeated coercion / abuse which can be inherently dis-empowering. This is often
particularly the case with girls who have been subjected to limited decision-making in
cultural contexts that are inherently disempowering to women and girls. Likewise,
many NGOs experience particular challenges with children who are substance abusers
as their powers of analysis and clarity of thought / ability to see their own situation are
diminished. The importance of this stage, however, is that the children – to the
greatest possible extent within given circumstances - make educated choices for
themselves, rather than having ‘choices’ made for them by others, no matter how wellintentioned. Children who are empowered are better able to protect themselves,
assess and strengthen their own support networks, and take part in sensitization and
collaboration efforts and other programmes needed for reform of the criminal justice
system. They are able to play a key role in the relationship-building which is necessary
for reform and which is described in the following section.
RELATIONSHIP-BUILDING IS KEY TO REFORM
By taking on board the implications of the holistic child rights-based approach
described in Section A of this chapter - i.e. that each child is unique, equally valuable
(non-discrimination), has the potential and right to develop (right to life, survival and
development), and the ability and right to contribute to that process (participation)
ensuring that the most appropriate solutions are developed (best interests) and
adequately resourced (implementation) - reform becomes child-centred. In other
words, the child is put at the center of decision-making processes.
However, a child obviously does not exist in isolation from others. It is a matter of
common sense that, just as the CRC places emphasis on the importance of family,
community and other stakeholders, so too must reform of justice systems take into
account children’s relationships with the many stakeholders who make up the ‘five
pillars’ of the system:
•
•
•
•
•
“
Good justice is good
relationships. Bad
justice is bad
relationships.34
“
B.3
2
law enforcement
prosecution
courts
correction
community
As will be demonstrated throughout this book, boys’ and girls’ relationships with any
of these actors can either be positive (supportive) or negative (abusive). Relationships
can either provide children with a network of support, or they can fail to do this so
that children end up ‘falling through the net.’ The aim of reform is to capitalize on the
supportive relationships and minimize the impact of (or preferably avoid altogether)
the abusive relationships.33
The issue of relationship-building in order to strengthen safety nets is particularly
important in the case of street children whose relationships – particularly with
responsible adults – may well have been damaged or ruptured (see Chapter 4 in
relation to ruptured family links).
All justice reform programmes depend ultimately on the individuals involved. In the
existing system policy decisions at macro level are originated and promoted by
individuals who then influence other individuals; individual police officers either
abuse or help; judges make decisions at their individual discretion; politicians push for
either punitive or restorative policies; journalists write either stereotyped or sensitive
stories etc. The criminalisation / stereotyping process of street children introduced
earlier in this chapter is a vicious cycle of individual interactions with street children
multiplying into public opinion and then influencing in turn yet more individuals. If
this can be considered as a ‘ripple effect’, then so too can relationship-building and
transformation, ‘turning the tide’ of criminalisation, stereotyping and discrimination.
33 Conceptualisation of the justice system in
terms of ‘five pillars’ is widely used in the
Philippines. These relationships are illustrated
in the diagram in Chapter 5.
March 2002, p.277.
27
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Reform must therefore work at the level of relationships: “Good justice is good
relationships. Bad justice is bad relationships.”34
•
Prevention (of street migration, of first-time offending or of re-offending)
depends not only on strengthening family, peer and community support
networks but also on building relationship bridges between this level and macrolevel decision makers who influence broader socio-economic policies;
•
Diversion programmes depend on transforming bi-lateral and multi-lateral
relationships between street children, police, social workers, community
members, family etc.;
•
Alternatives to detention depend on a street child’s relationships and support
networks being strong enough to produce an enabling environment to respond to
their multiple needs.
In short, “programmes should be based on the philosophy of social reparation and
restoration of damaged relationships.”35
Two strands therefore emerge:
a)
b)
Sensitisation (working at the level of individual relationships) and
Collaboration (the multiplier effect of relationship building).
B.3.a) RELATIONSHIP-BUILDING: SENSITISATION
Sensitisation is urgently needed amongst all the actors involved in the criminal justice
system, for example, lawyers, magistrates, donors, government advisers, civil servants,
social workers, probation officers, families, prison staff and so on. Well-targeted,
persistent advocacy aimed at key decision-makers and those who help to influence
public and institutional opinion is essential to combat ‘structural factors’ that weigh
against even the most well-meaning of individuals trying to improve conditions for
street children. However, whilst acknowledging the need for engagement with
multiple actors simultaneously across all branches of the justice system, the following
examples focus on sensitisation programmes specifically in relation to the police as
this is an area that has been identified by overseas organisations in many countries as
a priority area for intervention.36
PHILIPPINES: Police Handbook on
the Management of Cases of
Children in Especially Difficult
Circumstances, Department of
Social Welfare and Development,
National Police Commission and
Philippines National Police in
cooperation with UNICEF, Quezon
City, Philippines, 1993.
There are many examples of sensitisation work with the police, including:
•
Monthly ‘open forums’ held by NGOs where street children can ask the
police questions and the police get to find out more about the situation of the
children. This has helped to break down barriers and misunderstandings on both
sides (India).
•
Police training posters have been produced in the Philippines in sets of two
versions: one with simple stages for the police to take when dealing with a child
who is in conflict with the law and one with the stages for dealing with a child
who is ‘in need of care and protection’. The posters should be clearly displayed in
the police station to act as a reminder that the two categories of children should
be treated separately and clearly reminding them of the correct procedure to
follow in each case.37
•
Police guidelines / handbooks: In the Philippines, the posters have been
supplemented with a ‘Police Handbook on the Management of Cases of Children in
Especially Difficult Circumstances.’38 This contains information on the philosophy,
legal bases, general policy and definition of terms in addition to detailed guidelines
and procedures which clearly differentiate between children in need of care and
protection, those accused of being in conflict with the law and those who are victims
and/or witnesses. The guidelines cover areas such as protection and management
(apprehension, investigation / interviewing, fingerprinting, detention, referral,
linkages / networking), with specific procedures outlined for vulnerable groups.
The handbook also has a section on recording and reporting and includes copies of
report forms and log book format.39
35 Ibid, p.289.
36 E.g. The issue of police training and
sensitisation was prioritised as an area
necessitating urgent intervention during
discussions held at the Consortium for Street
Children International Workshop on Street
Children and Juvenile Justice, 4-8 July 2003
with representatives from Kenya, Nicaragua,
Nigeria, Pakistan, the Philippines, and Romania.
37 These posters are also featured in Chapter 7
in reference to the separation of criminal justice
and social welfare systems.
38 Police Handbook on the Management of
Cases of Children in Especially Difficult
Circumstances, Department of Social Welfare
and Development, National Police Commission
and Philippines National Police in cooperation
with UNICEF, Quezon City, Philippines, 1993.
39 This handbook is also featured in Chapter 7
in reference to the separation of criminal justice
and social welfare systems.
28
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•
•
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‘Children’s Desks’ in police stations staffed by police officers specially
trained in dealing with children (very often women). All children are
supposed to be dealt with through these desks rather than through regular ‘adult’
processes which are not suitable for them. This approach is in place, or being
developed in many countries such as India: according to the Juvenile Justice
(Care and Protection of Children) Act 2000, it has been proposed to have a Child
Welfare Officer (CWO) in each police station especially trained to handle cases
involving children and child abuse. Further, a Special Juvenile Police Unit is to
be formed [in Chennai], made up of CWOs. In addition to this, “At least one police
personnel from each station in the city has attended a ‘sensitisation programme’
and has been given necessary instructions on handling juvenile offenders and
children”. Meanwhile, ‘Childline’ volunteers will be visiting all police stations to
display messages and interact with police personnel. These volunteers are also
organizing street plays in slum areas to create an awareness on ‘Childline.’”40
2
Police training – either as part of the formal police academy curriculum, as
official and regular in-service courses, or on an ad hoc basis: for example, in
Angola, training of police responsible for children, conducted by an NGO in
association with the Ministry of the Interior “has been successful in raising
awareness of street children’s problems and rights, and the level of mutual respect
between children and police has increased. Both boys and girls are more willing
to go to the police and report crimes of violence since the awareness-raising
course, and the level of police violence has reduced.” A police officer has been
nominated to take responsibility for co-ordinating work with street children.41
POLICE AWARENESS-RAISING AND SENSITISATION - SKCV,
VIJAYAWADA, INDIA
PROJECT EXAMPLE
The problem: the majority of the police in India perceive street children as being a
nuisance. They themselves are over-worked and underpaid and little or no time to
help street children who are in trouble. Instead, it is easier to assume that they are
criminals and treat them badly, even if they have not done anything wrong. A
further problem is that the police in India are frequently ‘rotated’ around the
country. Therefore, just as an NGO has begun to develop a good relationship with
particular officers, they move out of the area and the work must begin again. [This
is true of the system in many countries].
The solution: The NGO SKCV started to invite individual police officers, with the
permission and encouragement of their Commissioner, to visit the street children who
were living in the NGO’s long-term hostel and undertaking vocational training etc. The
police were encouraged to spend time talking the children and listening to their
stories. The experience deeply affected the police involved on a personal level, finding
out that these children were no different from the policeman’s own children – except
for being more unlucky, perhaps. The project works on the principle that sensitising
and communicating with people on an individual level can make an impression that
will stay with them no matter where they are posted later in the country.
Lessons learned: This type of sensitisation proved much more effective than
traditional ‘training courses’ in a ‘classroom’ because it was able to touch the
participants emotionally. The scheme has proved so successful that the NGO has
become recognised as an official part of the training course of the national police
training school. Police officers are sent to spend time at the project as part of their
curriculum. This has extended the effects of the sensitisation beyond the city in
which the project is located to wherever the police will be posted.
Word of warning: Extreme care must be taken with this type of ‘direct contact’
approach between children and the police. The primary consideration must always
be the welfare, protection and best interests of the children. Children might see
such an approach as a betrayal of trust on the part of the NGO. What works in one
place may not be suited to another. [See Chapter 7 for further discussion on
different approaches to working with the police].
40 Newspaper article, ‘Special Juvenile Police
Unit to Handle Child-Related Cases’, The Hindu,
Madras, India, 2 May 2002, reproduced in
Butterflies, My Name is Today, Vol. X., No. 2,
Special Issue: ‘Children in Conflict with the
Law’, 2003, pp.51-52.
41 Assis Calundungo, S. de, ‘Street Children in
Angola’, CEIS (Centro di Informazione e
Educazione allo Sviluppo) in Petty, C. and
Brown, M. (eds), Justice for Children:
Challenges for Policy and Practice in SubSaharan Africa, Save the Children, June 1998,
pp. 75-76.
29
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Practical tips
LESSONS LEARNED FROM SENSITISATION PROJECTS
Unless individuals are touched and involved at a personal level, it is very
difficult to instigate reform: classroom lectures are short-lived, forgotten or
deliberately ignored; motivation is lacking, leading to delays and obstructions; other
priorities will always take precedence.
1
Street children’s participation (in a context of child protection safeguards) is
essential to this process: the impact of messages is greater; there is no substitute
for first hand sharing of experiences.
2
Creative methods of communication are much more effective than traditional
presentations of reports and recommendations: drama, music, pictures, diagrams
etc. have a lasting impact and clarity.
3
Regular follow-up sessions can help to encourage individuals who, even with
the best will in the world, are experiencing difficulties implementing their training
due to significant if not overwhelming obstacles presented by other individuals or
groups (e.g. pressure from other police officers to tolerate, participate in, and/or cover
up abuse, to fulfil arrest or conviction quotas that can only be met through abusive
means, to supplement low wages through bribery, extortion, or diversion of food and
other supplies intended for detainees). However, if this is revealed to be the situation,
then there is obviously a need for a comprehensive advocacy strategy to address the
root causes of the problems.
4
In light of the obstacles outlined above, there needs to be regular monitoring
and more thorough evaluation of the impact and effectiveness of training
and sensitisation programmes in order to review and improve strategies for reform.
This process may involve re-targeting the sensitisation work to include more
influential actors higher up the organisational hierarchy and the scaling up of the
numbers of personnel involved so as to gradually tip the balance of peer opinion in
favour of reform rather than corruption. This would ideally need to be accompanied by
the development of effective monitoring, investigating and complaints mechanisms to
ensure that that abusive behaviour is not tolerated, as well as providing incentives
and recognition to reward good behaviour. The immense challenges involved in this
type of work underscore the need once again to base interventions on a holistic
assessment of the system as a whole as well as emphasising the need to work
collaboratively.
5
B.3.b) RELATIONSHIP-BUILDING: COLLABORATION
Reform, Annie E. Casey Foundation, p.12.
30
Collaboration is the next step in capitalising on relationships built at the individual
level. It is also essential in a context of the overlap of multiple systems and actors that
makes up the ‘justice system’: “Collaboration by multiple stakeholders may be the only
way to address the barriers to change that juvenile justice’s ‘non-system’ character
poses.”42 Collaboration can effectively address delays in processing cases (as illustrated
by the examples of police and judiciary collaboration in Nicaragua given in Chapter 6)
as well as helping to improve conditions in detention (as shown once again by the
examples of the police in Nicaragua working with local business people and medical
and legal students). Collaboration is essentially the glue that holds together the web of
relationships between the five pillars of the justice system.
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Case study
EXAMPLE OF COLLABORATION – GOVERNMENT AND NGOS,
ANDHRA PRADESH, INDIA
The Indian government has recognised the problems highlighted by many NGOs in
relation to the treatment of children in the criminal justice system and in August
2003 the Juvenile Welfare, Correctional Services & Welfare of Street Children
Department in Andhra Pradesh put into practice a scheme of co-management of the
state's children's institutions with selected NGOs with a view to improving
conditions for children in line with the CRC.
2
Under this scheme each institution will have a key NGO co-managing the institution
and other member NGOs on a committee to monitor implementation. This is one of
several states developing such procedures under encouragement from the central
government.
The NGO ‘New Hope’ has been appointed as the ‘Nodal Agency’ for the Observation
Home at Rajahmundry and the local YMCA has been appointed for the Observation
Home in Anantapur. Both of these organizations are project partners of CSC member
The Railway Children. In addition, New Hope regularly visits the Observation Home in
Warangal where their input is welcomed by the management and boys. In
Vijayawada, there is a Child Rights Forum chaired by the mayor, and involving the
police and other state authorities in addition to all of the NGOs working with street
children in the city.
B.4 THE ROLE OF THE COMMUNITY IS ESSENTIAL
‘The community’ has already been highlighted as one of the ‘five pillars’ of the justice
system. In this context, the scope of the ‘community’ is very broad ranging and
includes many of the most important actors in the lives of boys and girls living and
working on the street. As highlighted previously, these relationships can either be
positive (supportive) or negative (abusive). The examples listed below obviously
represent an ideal situation towards which programmes can be oriented. For example:
•
•
•
•
•
The child’s family, extended family and / or ‘alternative family’ of
supportive peers and friends: these act as the ‘front line’ of a child’s protective
and supportive factors and are thus key to any programmes aimed at the essential
areas of prevention, diversion and alternatives to detention;
Specific influential and/or professional community members / service
providers such as teachers, doctors, social workers and religious leaders
who may be able to provide particular services and support to individual children
as well as playing a key role in influencing local opinion in terms of awarenessraising and sensitisation to the needs and rights of street children;
The business community, ranging from local shop-keepers to large
corporations: these can play an essential role in prevention, protection and
rehabilitation (through the provision of employment, development of local
economies, support for income generation and micro-credit schemes for families
in poverty, improvement in labour conditions through the development of
corporate social responsibility, ensuring that any private security guards they
hire are trained in child rights and made aware of child protection issues etc.);
Other community members such as neighbours: these can act as mentors or
role models for girls and boys who live and work on the streets or for those at risk
of taking to street life, act as an ‘early warning’ system to draw attention to
situations of abuse and act as prison visitors to monitor conditions in detention
and other institutions;
Civil society organisations such as NGOs, women’s groups, church groups,
children’s clubs, unions etc.: these can act as facilitators and implementers of
specific prevention and protection programmes, putting pressure on local and
national governments to implement reform as well as offering fora for mutual
community support, especially to at-risk families etc. In many countries and
31
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•
“
Our lives are
sometimes at the
top, sometimes at
the bottom, but we
can still surmount
problems.
(PHILIPPINES) 47
We thought of
running away from
home to be in the
streets with our
friends to escape
our problems in the
family. When we are
with friends, we feel
happy – we are
together through
thick and thin.
“
(PHILIPPINES) 48
12:01 pm
Page 32
communities it is these organisations who play the essential catalysing role in
reform of the justice system;
Academics: these individuals and institutions can provide much needed
research to assist civil society organisations and governments to develop
appropriate policies and interventions.
Sensitisation and collaboration at the level of the community is essential to
establishing or improving the networks of support available to street children and
involvement of the community should be a priority for any intervention.
B.5 RESPECT FOR CHILDREN’S RESILIENCY AND PEER RELATIONSHIPS43
A child rights-based, child-centred approach obviously needs to take into account the
specific circumstances of the individual children involved: relationships centred on
the child are dependent on the child’s individual personality and ability to
communicate.
“Under the vulnerability paradigm, children are viewed as passive, weak, dependent
and even problematic and this particular paradigm is evident in the issue of street
children. However, what is also evident is that street children are also ‘smart enough
to beat the system and they will beat the system in order to survive.’”44 There has been
a recent shift in the field of child development away from focusing on environmental
risk factors towards consideration of personal resiliency and environmental protective
factors that allow a child to survive the adversities of his or her environment. “The
central idea behind this new paradigm is resilience. Resilience has been defined as the
capacity to withstand, recover, and even grow from negative experiences.”45 The
resiliency concept is useful in that it can help to highlight the complexity of
psychosocial disorders and their causes, it can help us to identify previously
undetected possibilities for preventive action and “the idea of resilience keeps hope
alive in clinical practice; however much the odds against a good outcome, we know
that many children escape their ill fate.”46
“Our lives are sometimes at the top, sometimes at the bottom, but we can still surmount
problems.” (Philippines)47
“We thought of running away from home to be in the streets with our friends to escape our
problems in the family. When we are with friends, we feel happy – we are together through
thick and thin.” (Philippines)48
43 Much of this section draws on the pioneering
work in this field of academics, researchers and
practitioners in the Philippines, including the
Program on Psychosocial Trauma and Human
Rights, University of the Philippines Center for
Integrative and Development Studies who
partnered the Consortium for Street Children in the
Street Children and Juvenile Justice Project.
44 UP CIDS PST, Painted Gray Faces, 2003, p145.
45 Banaag Jr., C.G., M.D., Resiliency: Stories
Found in Philippine Streets, AusAID, National
Project on Street Children and UNICEF, Manila,
Philippines, 1997, p.9.
46 Banaag Jr., C.G., M.D. citing the work of Surla
Wolff (1995) in ibid.
47 Reginald, aged 18, in UP CIDS PST, Painted
Gray Faces, 2003, p. 149.
48 Ibid, p68.
49 Street Diary, Save the Children Fund -UK
Nepal, 2001.
50 SNV Kenya and GTZ (2002) The Story of
Children Living and Working on the Streets of
Nairobi.
http://www.snvworld.org/kenya/PublicaMain.htm.
51 Banaag Jr., C.G., M.D., Resiliency: Stories
Found in Philippine Streets, 1997, p.9.
52 Bandura (1977) quoted in ibid, p.16.
32
“Here we do not have any kind of blood relation with each other. But when we are in the
street with other friends, though we do not have any name for our relation, we are like a
family. We are all actually members of our street family.” (Nepal)49
“Life on the streets is not all about violence and abuse. The children develop strong
friendships and spirit of mutual support and assistance. They play, sing, watch videos, tell
each other stories and sometimes go to church together among other activities.”(Kenya)50
What is resiliency?
Studies have revealed the following critical factors associated with resiliency: external
supports and resources available to a child (e.g. family, school and community
institutions); personal strengths that a child develops (e.g. self-esteem, a capacity for
self-monitoring, spirituality and altruism), and social interpersonal skills acquired (e.g.
conflict resolution and communication skills).51 In-depth interviews with 25 street
children in Manila, Philippines revealed the following personal resiliency traits and
protective environmental factors:
•
‘Internal strengths’: sense of direction or mission and self-efficacy (“a positive
perception of one’s competence to perform certain tasks”52) / belief in self; social
problem-solving skills – which “reinforce one’s sense of competence and selfesteem”53; street survival skills – which, unlike problem-solving skills, “often
involve self-damaging behaviour that heightens the risk of failure in a street child
that is not resilient”54; adaptive distancing (ability to separate themselves
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physically and/or psychologically from risk factors in their environment, a trait
which requires the ability to realistically appraise situations and to self-monitor);
having a hobby or creative talent; realistic view of their environment; selfmonitoring; self-control; intellectual capacity; ‘easy’ temperaments and
dispositions – which helps foster good interpersonal relationships thus allowing
others to treat them in a more positive manner; capacity to recognize and learn
from mistakes made in the past; sense of humour.
•
‘Externally directed traits’: leadership skills; altruism; empathy; ‘going along
with a group to avoid confrontations’ which can either be positive or negative,
depending on the type of group in question.
•
‘Something bigger than oneself’: sense of morality; religion or faith in God.
As can be seen here “individual traits, while very important are not always sufficient
for the development of resiliency. Resiliency involves a process of interaction between
individual and environmental factors, not fixed attributes or traits within an
individual.”55 It is this unique interaction between individual child and specific
environment that brings us back once again to the need for an individualized approach
when working with street children which focuses on children’s choices: understanding
why they make particular choices, expanding the choices available to them and
empowering them to make those choices. As emphasized throughout, any
interventions in the field of street children in the criminal justice system need to focus
on minimizing the risk factors and emphasizing the protective factors in their
relationships. Such protective factors include:
•
Family protective factors: having family responsibilities; family traditions and
rituals; having a warm bond with a sibling; warm positive relationship with a
parent or other adult; positive adult modeling; supportiveness of child’s abilities;
high parental expectations.
•
Environmental protective factors: agency intervention; opportunity for
involvement in the community; school experience.56
“In summary, the street child with his resiliency traits can be viewed as the center
around which the family and community should provide protective elements that can
serve as buffers against the risks of adversity. […] Interventions on behalf of the street
children should not only focus on supplying what is deficient in their families but
should equally emphasise efforts at enhancing the children’s resiliency.”57
In the context of children who lack ‘traditional’ family ties, the role of the peer group
or gang as an ‘alternative’ family has important connotations for street children’s
resiliency. Consider the following statements by some of the participants to one of the
regional workshops in the Philippines which reveal both positive and negative
influences:
“I am happy when I am with my friends because they help me whenever I have a problem”;
“
Here we do not have
any kind of blood
relation with each
other. But when we
are in the street with
other friends, though
we do not have any
name for our
relation, we are like
a family. We are all
actually members of
our street family.
(NEPAL) 49
Life on the streets is
not all about violence
and abuse. The
children develop
strong friendships
and spirit of mutual
support and
assistance. They
play, sing, watch
videos, tell each
other stories and
sometimes go to
church together
among other
activities.
(KENYA)
50
“My friend is fun to be with, especially when we do drugs, smoke, play and help each
other.”58
“
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The testimony of Bernard, aged 17, demonstrates how important peer friendships are
in detention in the absence of adult carers:
“If you had no visitors, you won’t have any food. […] You’re like a sickly chicken. The one
who helped me was a fellow child inmate, with whom I became close. His mother always
visited him. He often shared me his food, and even gave me clothing. No one from
government helped me.”59
53 Rutter and Werner (1993) quoted in ibid, p.18.
54 Ibid, p.18.
55 Ibid, p. 29.
56 Summarised from ibid, pp. 15-34.
57 Ibid, p. 34.
58 Thoughts shared by participants during the
sentence completion exercises, in UP CIDS PST,
Painted Gray Faces, 2003, p. 71.
Examples of resiliency
59 Ibid, pp. 105-107.
Researchers in the Philippines who have worked with abused and exploited children
identified fourteen themes of resilience.60 Proofs of resilience linked to these themes
60 Researchers from the Program on
Psychosocial Trauma and Human Rights,
University of the Philippines Center for
Integrative and Development Studies.
33
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are found in stories and drawings of the child participants as part of the Street Children
and Juvenile Justice project. The examples below have been summarised from those
found in Painted Gray Faces, Behind Bars and in the Streets: Street Children and Juvenile
Justice System in the Philippines (UP CIDS PST, 2003).61
PHILIPPINES: Taking part in
activities at the Regional
Community Based Workshop,
Mindanao Region, 12-14 July
2002, organised by Tambayan as
part of the CSC Street Children
and Juvenile Justice Project.
Quezon City, UP CIDS PST and CSC, 2003,
Examples are taken / summarized from pp.
145-151.
34
•
Acceptance of difficulty and adjustment to the demands of difficult
situations
Abandoned at age one, Alvin (aged 17) spent most of his early life in the streets
and was into glue sniffing. He had committed robbery in order to survive. Nuns
adopted him at age six, sending him to school. Nonetheless he felt a great longing
for his real family, and he ran away and returned to the streets. Three years later,
he found his real family and lived with them for two years. Through the support
of his caregivers at the NGO which supported his educational needs, he learned
to accept and adjust. His resilience was demonstrated by his drawing, a ballpen.
He described the object as the “tool to bring him his future”. At the time of the
workshop, Alvin was graduating from high school, something that made him very
proud. He said that he wanted to finish his studies to help the other children
under the care of the organisation.
•
Competent functioning in the presence of major life problems
While in jail, Bernard (aged 17) experienced being beaten up and being forced to
clean the toilets. Moreover, his mother never visited him throughout his
incarceration. Fortunately, however, his classroom adviser took pity on him and
administered tests and quizzes in jail which he passed with high scores. He
managed to study despite living in a difficult situation, a time he described that
he had been “living like a dog”. Despite the seemingly insurmountable burdens
and in the presence of major life problems, Bernard had shown competence in
his subjects, pulling through his tests. During the Regional Workshop, he revealed
plans of momentarily becoming a construction worker so that he could continue
his studies.
•
Learning from life’s adversities
Donna (aged 12) was jailed for robbery. She experienced being humiliatingly
photographed in a pose simulating how she had committed the crime. She had
been a re-offender, escaping from one centre but then returning again on the
advice of her elder brother. In spite of it all, Donna gave a positive outlook on
what happened to her while in jail: “It is good because you’ll get disciplined in
jail.” She expressed wishes to be a better person and stop all her vices.
Apparently, Donna had learned from her experiences while in jail. Learning from
life’s adversities and being able to resist temptation also mark Samuel’s recovery.
He had lost his father, who died of a heart attack. After bringing his father to the
hospital, Samuel got involved in a gang war and landed in jail. He appeared to
have learned much from the adversities he experienced. Samuel drew a candle,
saying that it “brings light”. He declared that he wanted to get out of the gang
while there were still people who believed him. He said that he wants to finish
his studies so he can help his family.
•
Capacity to be self-reliant and self-governing
James (aged 17) was caught while trying to steal an item inside a truck. He
experienced violence in prison, but apparently he managed to deal with his life’s
struggles. The drawings he made exhibit his capacity to be a self-reliant and selfgoverning person. James drew a trishaw, explaining that he wanted to become a
trishaw driver so he could buy rice for his mother, “so that when it rains, people
will flag me down. It is better when you earn money out of sweat.” James, who
had also drawn the picture of a letter, said that he also wanted to become a
mailman, so that people would be happy when he delivers them letters.
•
Therapeutic construction of reality and forbearance and not making a big
deal of problems
Reginald (aged 18) had felt bad towards his mother, who had taken a lover and
even brought him to their home. He soon learned to use illegal drugs. Jailed for
stealing a pair of trousers, Reginald experienced being slapped and forced to
clean the toilet. He was afterwards released. According to Reginald, his brief
experience in jail gave him the chance to think about things. This clearly shows
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that he possesses a therapeutic outlook that helped him change. “If I had not been
caught, I would have turned out worse.” Reginald also greatly understood the
events in his life. His drawing of a wheel showed his forbearance. Through his
drawing, he gave his views about life: “Our lives are sometimes at the top,
sometimes at the bottom, but we can still surmount problems.” Reginald said he
dreamed of helping his family and sharing his happiness with them.
•
Good and wholesome character in spite of deprivation and finding
happiness amidst difficulties
Jayson (aged 17) experienced sadness and boredom while in jail. “You would
always be thinking especially when you have no visitors.” Despite having
experienced deprivation and dismal conditions while in jail, Jayson remained
good and wholesome at heart. This goodness and wholesomeness was shown in
his drawing, a puppet. Jayson explained that he wanted to become a clown, to
make other people happy. Despite difficulties while living in jail, Jayson
managed to find happiness, a happiness that he wanted to share.
•
Recovering from past wounds: moving on with life
Donald (aged 17) was no stranger to incarceration and the experiences of torture.
However, with the educational and social support of an NGO on release from
detention, he is recovering from his experiences. He drew a pencil, saying that
his previous life was in shambles, like a broken pencil He displayed the
determination to move on with life, saying that he would like to continue what
he is doing – “making the pencil whole again.” His words showed that he has been
recovering from past wounds and is moving on with life.
•
A firm sense of what is right and wrong and ability to resist temptation
Arrested for robbery, Marissa (aged 12) was jailed for three months. She
experienced being shamefully photographed. Although she did not go through
much hardship in jail, she admitted that the time she spent in jail and her
experiences behind bars, particularly with the cell boss, had disciplined her.
Having a firm sense of what is right and wrong, Marissa said that she does not
want to go back to jail - “I have had enough.” David (aged 15) meanwhile, was
released on condition that he would become an asset – an informer. “I don’t like
to be an asset.” Knowing that it was wrong, he refused and gained support from
an NGO. David ably resisted the temptation of becoming an asset, which could
have been his passport for a way out of jail.
•
Ability to be other-centred and ability to see situations as temporary
The two most common themes of resilience among all the children in this
chapter are their abilities to be other-centred and to see situations as temporary.
Since she had joined a gang, Carla (aged 16) often faced reprimands from her
parents, who refused to believe that she was still going to school. “I want them to
know that I love them and I hope that they will love me also.” Jailed for violating
the Anti-Vagrancy Law, Carla experienced being humiliated when arresting
officers asked her to sing the Philippine National Anthem, which she did not
know by heart. She was brought to the police station, where she was told that she
would be fed to the snakes. Carla’s experiences behind bars were not as traumatic
as those of the other children, but her problems were deeper, closer to home –
her relationship with her parents. Carla drew a flower, and wished that she would
be able to work. “And if my parents are still alive, I would still help them to know
that I love them. I will take care of them when they grow old. I hope things in
my family would turn out for the better.” Carla apparently felt unloved by her
parents, but she remained other-centred and devoted to them. On the other hand,
she could have become indifferent and turned her back on her parents. But
instead, she still included them in her life’s plans. Carla saw the situation in her
family as temporary, hoping that things would turn out right for her and her
family.
•
Ability to maintain sanity in the face of traumatic experience
All these illustrated cases point out to this particular theme of resilience. Despite
the traumatic experiences while in contact with the justice system, children were
able to maintain sanity and not lose hope. They still held on to their dreams and
went on living. “We have dreams too and no dreams are too small…”: Cynthia
2
NICARAGUA: The NGO Casa
Alianza Nicaragua encourages
the young people in its
programmes to take part in
activities to help the community
such as painting this local
school, April 2002.
35
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“
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We have dreams too
and no dreams are
too small
“
(PHILIPPINNES) 62
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(aged 15) drew a flower. Her wish is to see her family, to get married and have a
child. Jasmine (aged 10) drew a notebook. Her wish is to finish her studies.
George (aged 11) drew a hat. He explained that when he was still poor, he felt
very uncomfortably hot. He wants to be a vice-councillor, for his family to
become well-off and for him to finish school. David (aged15) drew a rock as a
symbol of his strength. He wants all his siblings to finish their studies. He wants
to be an artist and even the Vice-President of the Philippines. Romel (aged 15)
drew a ballpen and beamed about his literacy. He said he wanted to become the
President of the Philippines. Philip (aged 15) drew a handkerchief. He dreams of
having a united and happy family. He said that he wanted to have a job so he
could buy school uniforms for his siblings. Fidel (aged 14) chose to draw an
aeroplane. He wants to help his family. His wish is to be a pilot, and to forget his
past at the rehabilitation centre. Tony (aged 13) drew a cross. He said he wanted
to be a priest and to help his family. He even told the interviewer that he would
always pray for him. Bong-Bong (aged 13) drew a straw hat. He wants to return
to his hometown and be a farmer.
C) THE NEED FOR INTERVENTIONS IN THE FOLLOWING
FOUR PRIORITY AREAS:
62 UP CIDS PST, Painted Gray faces, 2003,
p.150.
36
In the context of the child rights-based approach to reform and the five key concepts
outlined above, the final element to complete the set of guiding principles for the
way forward in juvenile justice reform for street children is the prioritisation of
areas for reform. In the context of extremely limited resources and competing
priorities, there are four areas in which reform would help to break the revolving
door cycle of street children caught up in the criminal justice system:
•
prevention
•
separation of criminal justice and social welfare systems
•
diversion
•
alternatives to detention
Each of these areas is considered in detail, with project examples, in Chapter 7.
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Chapter summary
A child rights-based approach to reform means a focus not only on specific
juvenile justice guidelines, but one that is underpinned by a constant holistic reevaluation of programmes (through the ‘Table Leg Test’) based on the five
umbrella rights of the CRC: best interests of the child; non-discrimination;
2
participation; implementation (including of economic, social and cultural rights
to the maximum extent of available resources); right to life, survival and
development. In combination, these rights add up to an approach that views
each child as an individual human being, deserving of rights and capable of
participating in the process of achieving them in a supportive and adequately
resourced environment. The realization of human rights is especially important
for those such as street children who – through the process of criminalisation,
stereotyping and dehumanization – have been denied those rights.
Five key concepts: Relationship-building is the natural outcome of a child rightsbased - and therefore child-centred - approach to reform: it acknowledges that
the child is at the centre of a whole network of psychosocial, economic and
other relationships; it realises that these relationships may need to be
transformed in order to support children with safety nets, rather than having
them ‘fall through the nets’; it understands and respects the individuality of
each child and is a key weapon in combating criminalisation, stereotyping and
dehumanisation. Relationship-building and transformation can happen at both
an individual level through sensitisation, and by engaging multiple stakeholders
through collaboration. It is essential to juvenile justice reform. In the case of
street children, relationships – especially peer relationships and relationships
with the community - take on a particular significance. This is because it is a
lack of positive adult relationships that have brought them onto the streets and
into the system in the first place, and that same lack of positive adult
relationships that limits their opportunities to take part in diversion programmes
and more lenient sentencing options such as alternatives to detention.
Capitalising on street children’s natural resiliency (through understanding and
expanding their choices, and empowering them to make such choices)
strengthens the children’s own ability participate in the relationship-building
and transformation necessary to make reform of the justice system succeed.
Four priority areas for reform: in the context of a holistic, child rights-based
approach to reform and limited resources available, priority needs to be given to
the areas of prevention, separation of criminal justice and social welfare
systems, diversion and alternatives to detention.
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3
INTERNATIONAL
HUMAN RIGHTS INSTRUMENTS
Chapter overview
• Outlines the range of international and regional human rights instruments in
place that are of relevance to juvenile justice issues, indicating which ones
are child-specific and legally binding.
• Provides an overview of the contents of the child-specific instruments and
how they work together.
INTERNATIONAL AND REGIONAL HUMAN RIGHTS
INSTRUMENTS AT A GLANCE
1 Available at
http://www.unhchr.ch/html/menu3/b/a_ccpr.htm
“It is surprising that the Covenant has hardly, if
ever, been used for the promotion of good
practice in juvenile justice. The Human Rights
Committee states that it does not receive
information on juvenile justice issues, although
it would be interested to do so. NGOs working
in this area could usefully meet with members
of the Human Rights Committee to discuss
ways in which the Committee could work for
children.” Seymour, D., in Petty, C. and Brown,
M. (eds), Justice for Children: Challenges for
Policy and Practice in Sub-Saharan Africa, Save
the Children, June 1998, p.111.
There are a series of international instruments in relation to children in the criminal
justice system that can be grouped as follows. The shaded instruments are legally
binding on states that have ratified them. However, all other guidelines and rules still
carry the authority of the UN and can be used to support advocacy based on the legally
binding instruments.
2 Available at
http://www.unhchr.ch/tbs/doc.nsf/(symbol).GC.2
002.2.En?OpenDocument. This comment
includes language on access to places of
detention and to care institutions, provision of
legal aid, collection of disaggregated statistical
data, and other relevant issues. A ‘general
comment’ issued by the Committee on the
Rights of the Child is not legally binding, but
reflects the official position of the Committee on
particular issues and can be referred to when
the Committee is considering state reports.
3 Available at
http://www.unhchr.ch/html/menu3/b/a_cescr.htm
4 Available at
http://www.unhchr.ch/html/menu3/b/h_cat39.htm
5 Available at
http://www.unhchr.ch/html/menu3/b/d_icerd.htm
6 Available at
http://www.unhchr.ch/html/menu3/b/e1cedaw.htm
38
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CHILD-SPECIFIC INSTRUMENTS
NON-CHILD-SPECIFIC INSTRUMENTS
UN Convention on the Rights of the Child: CRC
(1989)
UN International Covenant on Civil and Political
Rights: ICCPR (1966)1
UN Committee on the Rights of the Child General
Comment 2 on the role of independent national
human rights institutions in the promotion and
protection of the rights of the child (2002)2
UN International Covenant on Economic, Social and
Cultural Rights: ICESCR (1966)3
UN Guidelines on the Prevention of Juvenile
Delinquency: the ‘Riyadh Guidelines’(1990)
UN Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment:
CAT (1984)4
UN Standard Minimum Rules for the Administration
of Juvenile Justice: the ‘Beijing Rules’ (1985)
UN International Convention on the Elimination of
All Forms of Racial Discrimination: CERD (1966)5
UN Rules for the Protection of Juveniles Deprived
of their Liberty: the ‘JDLs’ (1990)
UN Convention on the Elimination of All Forms of
Discrimination Against Women: CEDAW (1979)6
UN Resolution 1997 / 30 – Administration of
Juvenile Justice: the ‘Vienna Guidelines’ (1997)
UN Standard Minimum Rules for the Treatment of
Prisoners: The ‘Standard Minimum Rules’ (1995)7
UN Minimum Rules for Non-Custodial Measures:
The ‘Tokyo Rules’ (1990)8
I N T E R N AT I O N A L
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3
UN Code of Conduct for Law Enforcement Officials
(1979)9
NON-CHILD-SPECIFIC INSTRUMENTS
African Charter on the Rights and Welfare of the
Child: ACRWC (1990)
American Convention on Human Rights: ACHR
(1969)11 and Additional Protocol to the American
Convention on Human Rights in the Area of
Economic, Social and Cultural Rights: the ‘Protocol
of San Salvador’ (1988)12
European Convention for the Protection of Human
Rights and Fundamental Freedoms: ECHR (1950)13
REGIONAL
UN Basic Principles on the use of Force and
Firearms by Law Enforcement Officials (1990)10
1. UN CONVENTION ON THE RIGHTS OF THE CHILD (CRC)
In many ways the CRC is the most important legal instrument in relation to juvenile
justice because it is legally binding on all countries except Somalia and the USA. It is
therefore more powerful and more widely applicable than some of the other instruments.
The most specific articles in relation to juvenile justice are Articles 37 and 4015:
ARTICLE 37 prohibits torture, cruel, inhuman, degrading treatment or
punishment, capital punishment and life imprisonment, arbitrary or illegal
arrest, detention or imprisonment; stipulates that arrest and detention shall only
be used as a last resort and for the shortest appropriate period of time; outlines
the right of children deprived of their liberty to be treated with humanity, respect
and dignity in a manner that takes into account their age, to be separated from
adults, to maintain family contact, to have prompt access to legal and other
assistance, to challenge the legality of their detention and to expect a prompt
decision in relation to any resulting action.
ARTICLE 40 more specifically covers the rights of all children accused of infringing
the penal law. Thus it covers treatment of the child from the moment an allegation
is made, through investigation, arrest, charge, any pre-trial period, trial and
sentence. The article requires States Parties to promote a distinctive system of
juvenile justice with specific positive rather than punitive aims. It details a list of
minimum guarantees for the child and it requires States Parties to set a minimum
age of criminal responsibility, to provide measures for dealing with children who
may have infringed the penal law without resorting to judicial proceedings and to
provide a variety of alternative dispositions to institutional care.
7 Available at
http://www.unhchr.ch/html/menu3/b/h_comp34.htm
8 Available at
9 Available at
10 Available at
11 Available at
http://www1.umn.edu/humanrts/oasinstr/zoas8pdp.
htm
12 Available at
http://www1.umn.edu/humanrts/oasinstr/zoas10pe.
htm
13 Available at
http://www1.umn.edu/humanrts/instree/z17euroco
.html
14 Available, along with a list of states who have
ratified it and those who have entered any
reservations to any of the provisions at
http://www.unhchr.ch/html/menu3/b/k2crc.htm.
15 See Appendix 2 for further information on the
CRC in relation to street children and the full text of
Articles 37 and 40.
16 Conduct which would not, under law, be an
offence if committed by an adult. Examples include
truancy, running away and underage drinking. Its
classification as an ‘offence’ is therefore related to
the ‘status’ of the ‘offender’ as a child.
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Although the decriminalisation of ‘status offences’16 is not specifically mentioned in the
CRC, the Committee on the Rights of the Child is increasingly raising this issue during its
country reviews. Furthermore, the CRC’s requirement that arrest and detention only be
used as a last resort and for the shortest possible time is generally understood to prohibit
the routine arrest and detention of children for status offences – an interpretation which
the Committee has adopted in some of its concluding observations.
Practical tips
HOW TO USE THE CRC MORE HOLISTICALLY
However, bearing in mind the need for a holistic approach and the fact that Articles
37 and 40 do not deal with broader – yet essential – issues of prevention, it is very
important to set Articles 37 and 40 in the context of the overall framework of the CRC
and its umbrella rights. These include:
•
•
•
•
•
Art. 6 (the right to life, survival and development)
Art. 3.1 (the best interests of the child as a primary consideration)
Art. 2 (non-discrimination on any grounds)
Art. 12 (the right to ‘participation’)
Art. 4 (implementation – including of economic, social and cultural rights to
the maximum extent of available resources)
This more holistic approach allows a broader scope for lobbying for reform from a
child rights-based approach. Other CRC articles pertinent to street children and
juvenile justice, including aspects of prevention, are:
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Art. 3.3 (standards of care in institutions and services)
Art. 9 (separation from parents)
Art. 13, 14 & 15 (freedom of expression, thought, conscience, religion,
association and assembly)
Art. 16 (right to privacy)
Art. 17 (access to information / role of the media)
Art. 19 (protection from violence)
Art. 20 (special protection and assistance for children deprived of a family
environment)
Art. 23 (children with mental and physical disabilities)
Art. 24 (health)
Art. 25 (periodic review of placements)
Art. 27 (adequate standard of living)
Art. 28 & 29 (right to, and aims of, education)
Art. 30 (minority rights)
Art. 31 (right to rest, leisure and play)
Art. 32, 33, 34 & 36 (protection from economic exploitation / child labour,
substance abuse, sexual exploitation and abuse and other forms of
exploitation)
Art. 39 (recovery and reintegration of victims of all forms of neglect,
exploitation or abuse).
For further discussion of the CRC and the rights-based approach to street children and
juvenile justice issues, including the ‘table leg test’ programming tool, see Chapter 2.
2
UN GUIDELINES FOR THE PREVENTION OF JUVENILE DELINQUENCY:
THE ‘RIYADH GUIDELINES’ 17
The Riyadh Guidelines represent a comprehensive and proactive approach to
prevention and social reintegration, detailing social and economic strategies that
involve almost every social area: family, school and community, the media, social
policy, legislation and juvenile justice administration. Prevention is seen not merely
as a matter of tackling negative situations, but rather a means of positively promoting
general welfare and well-being. It requires a more proactive approach that should
involve “efforts by the entire society to ensure the harmonious development of
40
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adolescents”. More particularly, countries are recommended to develop communitybased interventions to assist in the prevention of children coming into conflict with
the law, and to recognise that ‘formal agencies of social control’ should be utilised only
as a means of last resort. General prevention consists of “comprehensive prevention
plans at every governmental level” and should include:
•
•
•
•
•
Mechanisms for the co-ordination of efforts between governmental and nongovernmental agencies;
Continuous monitoring and evaluation;
Community involvement through a wide range of services and programmes;
Interdisciplinary co-operation;
Youth participation in prevention policies and processes.
The Riyadh Guidelines also call for the decriminalization of status offences and
recommend that prevention programmes should give priority to children who are at
risk of being abandoned, neglected, exploited and abused.
3
3
UN STANDARD MINIMUM RULES FOR THE ADMINISTRATION OF JUVENILE
JUSTICE: THE ‘BEIJING RULES’ 18
The Beijing Rules provide guidance to states on protecting children’s rights and
respecting their needs when developing separate and specialised systems of juvenile
justice. They were the first international legal instrument to comprehensively detail
norms for the administration of juvenile justice with a child rights and child development
approach. They pre-date the CRC, are specifically mentioned in the CRC Preamble, and
have several of their principles incorporated into the body of the CRC (explaining why
Article 40 is by far the longest and most detailed article of the whole Convention).
The Rules encourage:
•
•
•
•
•
•
The use of diversion from formal hearings to appropriate community
programmes;
Proceedings before any authority to be conducted in the best interests of the child;
Careful consideration before depriving a juvenile of liberty;
Specialised training for all personnel dealing with juvenile cases;
The consideration of release both on apprehension and at the earliest possible
occasion thereafter;
The organisation and promotion of research as a basis for effective planning and
policy formation.
According to these Rules, a juvenile justice system should be fair and humane, emphasize
the well being of the child and ensure that the reaction of the authorities is
proportionate to the circumstances of the offender as well as the offence. The
importance of rehabilitation is also stressed, requiring necessary assistance in the
form of education, employment or accommodation to be given to the child and calling
upon volunteers, voluntary organisations, local institutions and other community
resources to assist in that process.
4
UN RULES FOR THE PROTECTION OF JUVENILES DEPRIVED OF THEIR LIBERTY:
THE ‘JDLS’19
This very detailed instrument sets out standards applicable when a child (any person
under the age of 18) is confined to any institution or facility (whether this be penal,
correctional, educational or protective and whether the detention be on the grounds
of conviction of, or suspicion of, having committed an offence, or simply because the
child is deemed ‘at risk’) by order of any judicial, administrative or other public
authority. In addition, the JDLs include principles that universally define the specific
circumstances under which children can be deprived of their liberty, emphasising that
deprivation of liberty must be a last resort, for the shortest possible period of time, and
limited to exceptional cases. In the context where deprivation of liberty is unavoidable,
the following conditions should be fulfilled:
17 Available at
Information in this section is compiled from Roy, N.
and Wong, M., Juvenile Justice Review and Training
Documents prepared for Save the Children UK, 20023 and Penal Reform International, International
Instruments Governing the Rights of Children in
Conflict with the Law, www.penalreform.org.
18 Available at
http://www.unhchr.ch/html/menu3/b/h_comp48.htm.
Information compiled as in ibid.
19 Available at
http://www.unhchr.ch/html/menu3/b/h_comp37.htm.
Information compiled as in ibid.
41
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•
•
•
•
•
•
•
•
Page 42
Priority should be given to a speedy trial to avoid unnecessarily lengthy
detention periods;
Children should not be detained without a valid commitment order;
Small, open facilities should be established with minimal security measures;
Deprivation of liberty should only be in facilities which guarantee meaningful
activities and programmes promoting the health, self-respect and responsibility
of juveniles. Food should be suitably prepared, clean drinking water must be
available, bedding should be clean and sanitary installations sufficient, clothing
should be suitable for the climate, and preventive and remedial medical care
should be adequate;
Detention facilities should be decentralised to facilitate contact with family
members and children should be permitted to leave the facilities for visits to
their family homes;
Education should take place in the community and children should have the
opportunity to work within the community;
Juvenile justice personnel should receive appropriate training. They should
respect the child’s right to privacy and protect children from any form of abuse
or exploitation;
Qualified independent inspectors should conduct regular inspections.
The JDLs serve as an internationally accepted framework intended to counteract the
detrimental effects of deprivation of liberty by ensuring respect for the human rights
of children.
RIYADH, BEIJING AND JDLS – INTERRELATED STRENGTHS
These three sets of rules can be seen as guidance for a three-stage process:
1. Firstly, social policies must be applied to prevent and protect young people from
offending (the Riyadh Guidelines);
2. Secondly, a progressive justice system needs to be established for young people
in conflict with the law (the Beijing Rules);
3. Thirdly, fundamental rights must be safeguarded and measures established for
social reintegration of young people deprived of their liberty, whether in prison or
other institutions (the JDLs).20
In technical terms, unlike the CRC these Rules and Guidelines are not legally binding
on countries. They do, however, present detailed guidance based on UN authority
and can be referred to equally alongside the CRC for lobbying purposes.
5
UN RESOLUTION 1997/30 – ADMINISTRATION OF JUVENILE JUSTICE:
THE ‘VIENNA GUIDELINES’ (1997)21
This UN Resolution (also known as the Vienna Guidelines) provides an overview of
information received from governments about how juvenile justice is administered in
their countries and in particular about their involvement in drawing up national
programmes of action to promote the effective application of international rules and
standards in juvenile justice. The document contains as an annex Guidelines for
Action on Children in the Criminal Justice System, as elaborated by a meeting of
experts held in Vienna in February 1997. This draft programme of action provides a
comprehensive set of measures that need to be implemented in order to establish a
well-functioning system of juvenile justice administration according to the CRC,
Riyadh Guidelines, Beijing Rules and JDLs.
20 Roy, N. and Wong, M., Juvenile Justice Review
and Training Documents prepared for Save the
Children UK, 2002-3.
21 Available at:
www.unhchr.ch/huridocda/huridoca.nsf/Documen
ts?OpenFrameset. Information in this section
adapted from Roy, N. and Wong, M., Juvenile
Justice Review and Training Documents prepared
for Save the Children UK, 2002-3.
22 Available at
http://www1.umn.edu/humanrts/africa/afchild.htm.
42
6
AFRICAN CHARTER ON THE RIGHTS AND WELFARE OF THE CHILD (ACRWC)22
When the CRC was written, it was important that it be applicable to countries and
cultures across the globe. While this broad description of children’s rights is relevant
to all people, it became apparent that the situation of the African child was different
from other regions. The Organisation for African Unity (now known as the African
Union) responded by drafting the ACRWC, which guarantees children’s basic rights
within the context of African culture. For example, Article 21 of the ACRWC addresses
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harmful traditional practices common in many African countries that can violate the
rights of children, such as corporal punishment, child labour, early marriage and
female genital mutilation.
As with the CRC, the ACRWC contains a broad range of socio-economic provisions that
can be referred to holistically, as well as the specific juvenile justice provisions of
Article 17, ‘The Administration of Juvenile Justice’, which 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
fundamental freedoms of others;
No child who is detained or deprived of his/her liberty shall be subject to
torture, inhuman or degrading treatment or punishment;
Children are separated from adults in their place of detention;
Every child shall be presumed innocent until proven guilty;
Every child shall be afforded legal assistance in the preparation of his/her defence;
The essential aim of treatment during the trial and if found guilty shall be
his/her reformation, reintegration into his/her family, and social rehabilitation.
3
SUMMARY OF THE INSTRUMENTS
Provisions of the international guidelines
Taken together, the Convention on the Rights of the Child and the other
international guidelines include the following provisions:
• All children should be respected as fully-fledged members of society, with
the right to participate in decisions about their own futures, including in
official proceedings without discrimination of any kind.
• Children have the same rights to all aspects of due process as those
accorded to adults as well as specific rights due to their special status as
children.
• Children should be diverted from the formal system of justice wherever
appropriate and specifically to avoid labelling as criminals.
• There is a set of minimum standards which should be provided to all
juveniles in custody.
• Custodial sentences should be used as a last resort, for the shortest
possible time and limited to exceptional cases.
• A variety of non-custodial sentences should be made available, including
care, guidance and supervision orders, counselling, probation, foster care,
education and vocational training programmes.
• Capital and corporal punishment should be abolished.
• There should be specialised training for personnel involved in the
administration of juvenile justice.
• Children have the right to release unless there are specified reasons why
this should not be granted.
• Children have the right to measures to promote recovery and reintegration for
victims of neglect, exploitation, abuse including torture and ill-treatment, and
armed conflict.
• States are obliged to establish a minimum age of criminal responsibility
which is not set too low, but reflects children’s capacity to reason and
understand their own actions.
• States should invest in a comprehensive set of welfare provisions to
contribute to preventing juvenile crime. This should include provision for
very young children. Provision should involve the government, NGOs,
churches, volunteers, etc.
This summary is taken from Petty, C. and Brown, M. (eds), Justice for
Children: Challenges for Policy and Practice in Sub-Saharan Africa, Save
the Children, June 1998, p.23 (with additional material shown in italics).
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Chapter summary
• There are many human rights instruments available to draw on in order to
support lobbying for reform and to assist in the design and implementation of
policies and programmes.
• Of these, the Convention on the Rights of the Child is the most powerful as it
has the widest jurisdiction, is legally binding, and is specific to children. The
African Charter on the Rights and Welfare of the Child provides a similar
function in the African context. However, the CRC and/or ACRWC should be
supported by reference to other instruments which can provide more detailed
guidance.
• The use of any of these instruments should be grounded in a holistic
approach that caters for the overall development of children by underscoring the
importance of socio-economic prevention and protection programmes.
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4
CIRCLE OF EXPERIENCE:
LINKS BETWEEN THE CAUSES OF STREET MIGRATION, BEHAVIOUR
ON THE STREET AND TREATMENT IN THE JUSTICE SYSTEM
Chapter overview
•
Outlines how some of the specific factors that cause children to
leave home in the first place impact on their subsequent
behaviour on the street and how this can in turn affect their
treatment in the criminal justice system. Examples of treatment
4
experienced on the streets and in the criminal justice system are
used to illustrate points throughout, but a detailed discussion of
this issue is left for Chapter 6.
•
Illustrates the links between these issues in the form of a
diagram and emphasises the importance of choice and resiliency
in relation to entry points for early intervention.
•
Includes detailed information on:
A) Causal factors of street migration: poverty, ruptured family
links, urbanisation and HIV/AIDS.
B) Behaviour and survival strategies on the streets: ‘vagrancy’,
substance abuse, coercion / involvement in adult criminal
activity, gangs.
MAKING THE LINKS: CHOICES, RESILIENCY AND
ENTRY POINTS FOR INTERVENTION
The causes of street migration are inherently linked with the behaviours and strategies
children subsequently use to survive whilst on the streets. These behaviours and
strategies in turn impact on their vulnerability and treatment within the criminal
justice system. These links will be further explored throughout this chapter but are
introduced in the form of the following diagram which aims to give an overview of the
circular nature of street children’s experience.
Chapter 4: Circle of Experience
45
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“
The rich boy won’t
go to jail, even for a
serious offence such
as voluntary
manslaughter. The
poor boy, meanwhile,
will spend two
months in jail for
stealing a necklace.
They are
criminalizing the
poor. Being poor is
the surest indicator
that a child who
enters the system
will end up in jail.”
46
“
(GUATEMALA) 2
Page 46
It is important at this stage to understand that this diagram is obviously generalised
and that individual children’s experiences will vary greatly, dependent largely on the
part played by choices, limited choices and non-choices in their life stories. This
concept of ‘choices’ has already been introduced in Chapter 2. To a certain extent,
children’s choices may become increasingly constrained as they progress around the
‘circle’: for example, a boy may ‘choose’ to leave home in order to earn money and
escape from the responsibilities of having to look after younger siblings at home;
however, once on the streets his choices may become more limited if (for example) he
is forced or coerced into participating in criminal activity for a group of older boys;
furthermore, when he is arrested (i.e. at the stage of contact with the criminal justice
system), he may find his choices have turned into ‘non-choices’ as control of the
situation is taken out of his hands by external factors (such as the police). At this point,
his ‘choices’ are limited to how he reacts to these external factors and therefore issues
such as resiliency come into play.
A key aim of work with street children in this context is therefore to employ the 3-stage
choice approach: understanding and expanding choices available to children in specific
circumstances and empowering them to make those choices. It is obviously preferably
that this intervention take place as soon as possible in the ‘circle of experience’ before the
available choices become too limited and it is for this reason that the framework for
reform proposed in this book prioritises intervention in the following areas, in a specific
order which favours early intervention: prevention, diversion and alternatives to detention.
See Chapter 7 for a diagrammatic representation of these ‘entry points’.
A) CAUSAL FACTORS OF STREET MIGRATION
In general, factors which cause girls and boys to leave home to live and work on the
streets include:
•
poverty
•
ruptured family links (including neglect, violence and problems associated with
‘reconstructed families’)
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•
•
•
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urbanisation
HIV / AIDS
conflict
natural disasters1
There is clearly an argument that any factor that causes children to come onto the
streets automatically puts them at risk of contact with the justice system, but the
discussion here will be limited to those factors which are more directly relevant to
street children’s involvement in the criminal justice system, namely poverty, ruptured
family links, urbanisation and HIV/AIDS.
A.1 POVERTY
“The rich boy won’t go to jail, even for a serious offence such as voluntary manslaughter.
The poor boy, meanwhile, will spend two months in jail for stealing a necklace. They are
criminalizing the poor. Being poor is the surest indicator that a child who enters the system
will end up in jail.” (Guatemala)2
The links between poverty and crime are well known3, not only in terms of income
poverty, but also in the way that poverty can restrict access to services such as
education, access to justice, and how it can limit life choices and opportunities.4
However, it is important to stress that not all poor children become street children:
poverty as a push factor in relation to street migration and crime must be seen within
the broader context of supportive or non-supportive relationships of an individual
child – a concept explored further in Chapter 5.5 Likewise, not all street children
engage in criminal activities as a means of economic survival. However, the choices
available to children living and working on the streets can be very limited. Even
making a deliberate choice not to engage in criminal activities is no guarantee of
protection against involvement in the criminal justice system: poverty renders street
children powerless to avoid arrest on the grounds of simply being in the wrong place
at the wrong time (see the section in Chapter 1 outlining the confusion between
children in actual conflict with the law, in perceived conflict with the law and those in
need of care and protection for more details).
For those children who do ‘choose’ to become involved in crime, however, the links
between poverty and survival explain clearly why the majority of crimes committed
by street children are property-related offences. For example:
•
•
•
•
In Malawi, statistics from 1997 show that 68% of registered offences were theft,
burglary and robbery; a further 8% were ‘vagabond’: “a term … representing
obvious cases of street children”;6
According to the most recently published government statistics on children in
conflict with the law in Romania,7 it would appear that the vast majority are
arrested on charges of robbery or theft of private property (84%), and that a
massive 95% of all children arrested are boys from urban areas;
According to research in Nigeria by the NGO Human Development Initiatives as
part of the HDI / CSC Street Children and Juvenile Justice Project, between
March – April 2003, 70% of boys detained for criminal offences in the Boys’
Approved School, Isheri, Lagos, were there on charges of theft;8
In the Philippines, in 2001, 54% of all crimes committed by children were for
theft, a further 21% for ‘use of volatile substances’, 6% for robbery and 3% for
‘dangerous drugs’ – far outweighing the remaining 16% made up of physical
injuries and rape.9
In addition to being a push factor in relation to street migration and involvement in
crime, poverty can also affect children’s experiences once inside the system. Levels of
corruption amongst police and other officials in many countries are particularly
damaging to those who are unable to pay the necessary bribes for police ‘protection’, to
prevent arrest, for early release from detention, and for more humane treatment within
detention. Incidents have also been reported of members of the public – with more
money than the children - bribing officials to bring heavier penalties against street
children, or even to proceed on false charges. Poor families are less likely to have the
resources to intervene on behalf of their children, even in terms of maintaining contact
4
1 Examples include: Hurricane Mitch in Central
America (October – November 1998) which left
an estimated 3,000,000 people either homeless
or otherwise affected (see http://www.casaalianza.org/EN/reports/oneyear/naturaldisaster.p
html for information on the response of
organisations such as Casa Alianza to the
disaster);and the Orissa Super Cyclone (October
1999) which – amongst other things - damaged
1,828,532 houses (and in response to which
NGOs such as New Hope in Andhra Pradesh /
Orissa (partner of the UK-based organization,
the Railway Children) set up intervention
centres on the Calcutta - Visakhapatnam
railway line to pick up children drifting to
Calcutta or Chennai - an intervention known as
"Operation Stay Put").
2 Interview with Claudia de Carrillo, Chief
Minors’ Prosecutor (Fiscal de Menores),
Guatemala City, 10 September 1996, quoted in
Human Rights Watch, Guatemala’s Forgotten
Children: Police Violence and Abuses in
Detention, July 1997, p.52.
3 See e.g. Prof. Dr. Veeraraghavan, V., ‘Juvenile
Violence’, in Butterflies, My Name is Today, Vol.
X., No. 2, Special Issue: ‘Children in Conflict
with the Law’, 2003, p.8: In India, although there
are children from higher income families that
come into conflict with the law, “according to
rough estimates, these children only constitute
only about 0.5% - 1% of the total juvenile
offenders who are apprehended and tried”.
4 E.g. Centre for Youth and Children Affairs
(CEYCA), A Survey Study Report on the Juvenile
Offenders in Malawi Prisons and Approved
Reform Centres, Malawi, January 1999, p.10.
5 The Philippine NGO Childhope Asia Philippines
(CHAP) points out that while living below the
poverty line is a generally valid indicator, “it
cannot be taken separately from other relevant
indicators… Domestic violence, atmosphere of
conflict at home, poor communication and
parent’s lack of clear expectations from the
children are additional risk indicators that may
strongly react with poverty in pushing children
to the streets.” On the other hand, CHAP also
noted that the “presence of caring adults is the
first positive factor for keeping the family intact
even in the face of economic crises or other
stressful experiences.” Cited in UP CIDS PST,
47
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through phone calls and travel expenses to visit or attend trials etc., let alone payment of
bail and bribes. Furthermore, as with the children themselves – families may be
disempowered through illiteracy and lack of status/social connections when dealing with
police and judicial officers. Poverty is therefore one of the key links between street
migration, survival strategies and treatment in the system.
A.2 RUPTURED FAMILY RELATIONSHIPS: ABUSE, NEGLECT, VIOLENCE AND
RECONSTRUCTED FAMILIES
As borne out by testimonies from street children in the workshops organised as part
of the Street Children and Juvenile Justice Project, ruptured relationships within the
family – through neglect, physical, psychological and sexual violence, death,
separation, abandonment, imprisonment of parents, divorce, re-marriage and the
pressures on female-headed households etc. - play a key role in pushing children to
leave home. When discussing street children and family relationships, as well as
appreciating that each child has their own story to tell, it is important to note that
there are often significant differences between street-living and street-working
children, the latter being more likely to maintain more stable and supportive
relationships than those who have chosen – or been forced – to leave home.
CHILDREN’S EXPERIENCES
OF RUPTURED FAMILY RELATIONSHIPS
Gross abuse and maltreatment of children by parents,
sometimes in the name of discipline is a great challenge
to the children. Sometimes parents don’t see their children as
gifts. Step-parenthood sometimes means children live under
harsh parent-substitutes. (NIGERIA) 10
6 Centre for Youth and Children Affairs (CEYCA),
A Survey Study Report on the Juvenile
reform Centres, Malawi, January 1999, p.16.
7 Government of Romania (2002) Second
Periodic Report to the Committee on the Rights
of the Child, Section 8(B), cited in ASIS and
and Juvenile Justice in Romania, February
2004. See also Giles, Prof. G.W., Turbulent
Transitions: Delinquency and Justice in
Romania, Bucharest, March 2002, p.137.
8 Human Development Initiatives and
and Juvenile Justice in Nigeria, February 2004.
9 UP CIDS PST, Painted Gray Faces, 2003,
pp.80-81.
10 Michael, presenting findings of the children’s
session to the Workshop on Street Children and
Juvenile Justice, Lagos, Nigeria, 2-4 June 2003,
cited in HDI and CSC, Street Children and
Juvenile Justice in Lagos State, 2004.
11 Sarah, child participant in the National
Workshop on Street Children and Juvenile
Justice, Nairobi, Kenya, 6-7 March 2003, cited
in Consortium for Street Children, Street
Children and Juvenile Justice in Kenya,
February 2004.
12 Girl, aged 14 at the National Children’s
Workshop, August 2002, and Cora, street girl,
aged 13, cited in UP CIDS PST, Painted Gray
Faces, 2003, pp.45 and 60 respectively.
48
I used to go to school and have food, clothing. But in 1993 my
mother died. I was 4 and my little sister was only one. My father
used to do some little business. A month later, my sister died.
Then my father died. The other relatives despised me and
rejected me and did all kinds of things to me. Even now I have a
burn on my leg from when I was cooking. They didn’t help me. I
was made to do work but I was only 4. I had no money. I had an
uncle on my father’s side and an aunt from my mother’ s side. At
my uncle’s, I had to sleep on the floor with no blankets. So I
went to my aunt’s house, but it was even harder there. It was not
yet a year since father died. I was so lonely. (KENYA) 11
Because of family problems, we left home and stayed out in the
streets with friends. Here, we learned how to break the law in order
to survive and this is why the police caught us. We experienced
different kinds of abuse under the hands of older people.
My father was imprisoned because of amphetamines. That’s the
reason why my family broke apart and why my mother
went with another man. I ran away and stayed at a
friend’s house. My father is still in jail. (PHILIPPINES) 12
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My mother is not interested in where I am and what I am
doing.” “My mother doesn’t know where I am, she spends
all her time shooting craps with my father.” “My father doesn’t
care about me, what I do or where I go, he’s into drinking
and gambling. (ROMANIA) 13
There is strong evidence from around the world that violence often constitutes the
critical differentiating factor between children who work on the streets, and the
relative minority who actually live on the streets.
•
•
•
•
According to research conducted in Peru, family violence and child mistreatment
was the precipitating factor in 73% of cases of children migrating to the streets.
53 % of Guatemalan street children interviewed reported having been abused by
a family member.
Brazil – 1992 research: street-living children reported higher levels of corporal
punishment at home (62%), compared to street-working children (23%). The
same trend was evident in Ethiopia.
It is important not to underestimate psychological violence in this equation; for
example, according to a 1997 study in Angola, “Many children complain of being
shouted at or hit and talk of the fear of punishment, even if it is for a single
misdemeanour, as a reason for leaving home.”14
In addition to violence, problems associated with ‘reconstructed’ families are a
significant push factor. Large families resulting from poor family planning, multiplepartner relationships and - in some countries - polygamy, combined with the stresses
associated with female-headed households (and increasingly child-headed households
in the context of HIV/AIDS) mean that many children are not receiving the economic
or emotional support they need for healthy development. Combined with the
weakening of traditional extended family support systems, some of these children are
falling through the net. In ‘re-constructed’ families children from previous
relationships can end up bearing the brunt of any resulting power shifts within a
changing household.15 This can manifest itself in the following ways: being treated
differently in the house to other children, being shouted at and beaten more often,
being asked to do a larger share of the work, not being given food or other goods or
being made to feel like an intruder. This may be linked to either real pressure on
resources or perceived pressure on resources. This resentment can be exacerbated if
the child’s ‘direct’ relation is out of the house for long periods of time leaving primary
care of the child to the new partner. Likewise if there is conflict between the child’s
direct relation and their new partner this can be taken out on the scape-goated child.16
Child workshop participants as part of the Street Children and Juvenile Justice project
frequently cited problems with step-parents and new partners as a factor involved in
their decision to leave home.
Once on the streets, an individual child’s experience of family relationships will either
act as a protective factor, or as a risk factor. Positive family relationships can factor into
choices not to get involved in criminal activities whereas ruptured or negative family
relationships can pre-dispose them to the opposite as the following case study from
Romania shows.
4
13 Taken from interviews with street children in
Save the Children, ILO/IPEC, Working Street
Children in Bucharest: A Rapid Assessment,
2002, and cited in ASIS and Consortium for
Justice in Romania, February 2004, p.29.
14 Wernham, M., Consortium for Street
Children, Written Submission to the UN
Committee on the Rights of the Child, Day of
General Discussion, Friday 28 September 2001,
Violence Against Children Within the Family,
citing research from Prevention of Street
Migration: Resource Pack, Consortium for Street
Children and University College Cork, 1999, and
‘Families Worldwide’, fact sheet by the
International Sexual and Reproductive Rights
Coalition, June 2001.
15 “Most children had experienced not only a
conflictive and violent family context, but mainly
a loss of their ‘place’ and status in the family,
having previously experienced serious affective
losses (mainly of parents) and having become
the hostages of the power struggles which
resulted as the family redefined itself.” 90% of
the street-living children in a survey in Lima,
Peru were found to have come from rebuilt
(step-parent) or monoparental families or from
rural families that had given the child to people
in the city to raise. Dr Dwight Ordoñez
Bustamante, ‘Family Structure Problems, Child
Mistreatment, Street Children and Drug Use: A
Community-Based Approach’, in CSC / UCC,
Prevention of Street Migration, 1999, p. 28.
16 Wernham, M., CSC, written submission on
Violence Against Children Within the Family,
drawing on Moberly, C. (1999) The ‘Voluntary
Separation’ of Children in Angola:
Recommendations for Preventive Strategies’, in
CSC / UCC, Prevention of Street Migration, 1999,
p.41.
49
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Case study
FAMILY RELATIONSHIPS AND CONFLICT WITH THE LAW, ROMANIA17
Iulian is 17 years old and is serving his second prison sentence for having committed a robbery
(i.e. theft with violence or threats). The second attempt occurred only one month after he was
released from the penitentiary first time round.
Iulian comes from a broken family of 8 members, many of whom already had
criminal records before he grew up. His family relations have been characterised by
physical violence, alcohol use by both parents, arrests of his father and prostitution
practiced by his mother. Iulian is aware of all of this, but when he tried to explain to
his mother that part of the problems experienced by himself and his siblings was
the lack of material and emotional support from their parents, she chased him out of
the house. Iulian admits he has committed several thefts he was never caught for,
has consumed alcohol, gambled and used violence towards both his friends and
parents. In the penitentiary also, he has been punished several times for violent
behaviour in relation to his room mates and with staff. Yet Iulian believes this
lifestyle to be closely connected with his family situation and sees it as the only one
possible for him. As such, he is determined not to continue living with his family
after he is released from the penitentiary, and has decided instead to live on his own
on the street.
Ruptured relationships not only render street children more vulnerable to contact
with, and abuse within, the criminal justice system due to lack of protection from
responsible adults, but absence of parents or guardians to take responsibility for their
custody and supervision means that street children are less likely to benefit from
diversion programmes and alternatives to detention.
The centrality of relationships to all aspects of work with street children in relation to
criminal justice systems is explored in greater detail in Chapters 5 and 7. It is essential
that relationships are placed at the centre of efforts to reform justice systems at every
stage, especially in the priority areas of prevention, diversion and alternatives to
detention.
A.3 URBANISATION
17 Cited in ASIS / CSC, Street Children and
Juvenile Justice in Romania, 2004. As implied
here, the neglect of children has been
exacerbated by the problems encountered by
adults/parents in adapting to the postcommunist Romania and the consequent rise in
alcoholism and gambling as distraction
activities. By the year 2000, alcoholism and
physical violence had respectively become the
second and third most common reasons cited
for divorce across Romania (Council of Europe,
Recent Demographic Developments in Europe
2002, Strasbourg, 2003).
18 E.g., “In most parts of the world,
urbanisation is associated with an increase in
the crime rate. This means that in regions
where urban populations are growing, the crime
rate is also likely to rise. Crime rates in Africa,
which has the fastest urbanisation growth rate
of any world region (World Bank, 1995),
conform to this pattern” in Petty, C. and Brown,
M. (eds), Justice for Children: Challenges for
Policy and Practice in Sub-Saharan Africa, Save
the Children, June 1998, p.63. In Albania, “The
migration within country, from poor urban and
rural areas towards the big cities, has caused
high rates of criminality where children and
young people have been involved as offenders
or victims of crimes”, in Hazizaj, A. and Barkley,
S.T., Awaiting Trial: A Report on the Situation of
Children in Albanian Police Stations and PreTrial Detention Centres, Children’s Human
Rights Centre of Albania (CRCA), May 2000,
p.62.
19 Petty, C. and Brown, M. (eds), Justice for
Children, 1998, p.65.
50
In the context of street children, poverty and ruptured relationships, as discussed
above, are closely linked to issues of urbanisation. Rapid and uncontrolled
urbanisation is associated with an increase in crime rates18 while urban migration is
often accompanied by disruption of social support networks, fragmentation of
communities and increased strain on limited physical and financial resources.
Children end up on city streets either having left home directly from rural areas, or
via urban or peri-urban slum settlements following family break-up (possibly linked to
the stresses of urban life mentioned above) or the need to earn money to take home
to such areas.
Particular challenges arise in implementing justice reform in urban areas. It has been
questioned whether fragmented and fluctuating urban communities provide a stable
enough framework within which to implement the types of community-based
traditional and non-formal restorative justice initiatives which have proved successful
in rural areas. On the other hand, the ‘popular’ justice which has flourished in urban
areas, such as vigilante violence, is subject to very limited checks or balances.19
Initiatives on prevention, diversion and alternatives to detention may also be affected
in urban areas where street children may not only lack family ties, but also ties to their
wider community. These challenges are addressed in more detail in Chapter 7.
However, the relationship between street children, urbanisation and crime is not
simple. The case study from Luanda, Angola that is later described in Chapter 7
demonstrates how individual and specific groups of street children can defy common
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assumptions made about them. It also illustrates how very different situations can be
from country to country, city to city and between neighbourhoods. The case study
describes the mutually supportive relationship that certain groups of street children
have developed with local community residents. The children have devised their own
codes of conduct which strictly prohibit stealing from the local community on whom
they rely for shelter, protection and the successful running of their small businesses.
In return, the local residents support the children’s businesses, protect them from
outside threats, and in some cases develop a more ‘parental’ role with them. Whilst
there are also other, less stable groups of street children in the city who are more likely
to engage in criminal activity, the community relationships developed by the former
group mentioned above provide hope for the relationship-building strategies focused
on in this book. 20
A.4 HIV/AIDS
GUATEMALA: Santa Fas - shanty
dwellings on the outskirts of
Guatemala City, a community
severely affected by Hurricane
Mitch in 1998 and identified by
local NGOs as a high-risk area
for street migration.
© The Toybox Charity
We did not have enough food to eat, so we would steal
manioc [cassava] from the market and get beaten by the
shopkeeper.” (TOGO) 21
Susan B., age ten, who had lost her mother to AIDS only a few
weeks before Human Rights Watch met her … said that things
were so bad when her mother was dying that her mother would
send her to the streets to steal. Stealing on the streets of Nairobi
is potentially very dangerous labour, particularly in view of
the abusive treatment of street children by the police and
in the juvenile justice system. (KENYA) 22
4
HIV / AIDS can act as a push factor for street migration and consequently
involvement in the criminal justice system in a number of ways: 23
•
•
•
•
•
•
Children may be sent out to work or steal on the streets in order to supplement
family income if economically productive adults become unable to work as a
consequence of contracting AIDS-related illnesses;
Children who have been orphaned by AIDS and who are not capable of being
supported by extended family and/or community members (who are themselves
put under strain by the pandemic) may end up migrating directly to the streets;
Children orphaned by AIDS or whose parents are ill with the disease may run
away from abusive substitute carers;24
Children orphaned by AIDS might also move to the streets after finding
themselves unable to cope with the pressures of looking after younger siblings in
a child-headed household;
Community alienation and stigma following the death of a family member, or as
a result of suspected of being HIV positive, may also encourage children to move
away from communities;
“Girls and women in households touched by AIDS and by poverty frequently find
their choices and possibilities so diminished that they have to turn for survival to
the sex trade or to situations of lodging or work that expose them to sexual abuse
and violence, increasing the risk that they themselves will die of AIDS.”25 Human
Rights Watch goes on to highlight that in Zambia, for example, police conduct
round-ups of sex workers and charge them with loitering or indecent exposure.
Usually, the women pay 10,000 kwacha (U.S. $2.30) and are freed in the
morning;26 at other times, the police take the women’s money or demand sexual
services as payment.27
HIV infection – or suspicion of infection – may render street girls and boys vulnerable
to even greater discriminatory treatment once within the system. Furthermore, in the
20 Ibid.
21 Human Rights Watch interview with a girl
who had been trafficked into Togo and was
living on the streets, Bassar, Togo, May 3, 2002,
cited in Human Rights Watch, In the Shadow of
Death: HIV/AIDS and Children’s Rights in Kenya,
2001, p.14.
22 Ibid, 2001.
23 Also, once on the street, street children –
particularly those living on the streets and/or
those involved in the worst forms of child
labour (e.g. commercial sexual exploitation) are
at very high risk of contracting HIV themselves.
Coming from poor communities, often with
limited access to education and information on
HIV prevention and primary healthcare, and
combined with potential psychosocial problems
as a result of lack of counselling available to
deal with unresolved grief issues, children
orphaned by AIDS who are living and working
on the streets are very vulnerable to infection.
This vulnerability may be exacerbated by
substance abuse which is likely to contribute to
them engaging high-risk sexual activity as well
as potentially putting them in direct conflict
with the law.
24 See e.g. Human Rights Watch, In the Shadow
of Death, 2001, p.4.
25 Ibid. See also 2003 report, Policy Paralysis: A
Call for Action on HIV/AIDS-Related Human
Rights Abuses Against Women and Girls in
Africa
26 Human Rights Watch interview with Eric
Ngoma, Tasintha program manager, Lusaka,
Zambia, May 23, 2002, cited in Human Rights
Watch, In the Shadow of Death, 2001.
27 Human Rights Watch interview with Clemire
Karamira, MAPODE, Lusaka, May 20, 2002, cited
in ibid.
51
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case of children orphaned by AIDS who are living and working on the street, the same
issues relating to ruptured family links will apply.
B) BEHAVIOUR AND SURVIVAL STRATEGIES ON THE STREETS
Having examined some of the key factors that bring children onto the streets and into
conflict with the law in the first place, this section will examine four examples of
behaviours or survival strategies that girls and boys may engage in whilst on the
streets that may further compound their vulnerability to contact with the criminal
justice system and negative treatment once within the system.
B.1 ‘VAGRANCY’
Maybe you have not done anything – just loitering – you
are put in a car boot or a lorry with the prostitutes,
drunkards, murderers and ‘all the nonsense’ that have been
collected that night, then they drive you around for a long time,
go to police station, accuse you of sniffing glue, bhang – even
they pour alcohol on you – then you are put in the cell
with the others and put to sleep in a nasty place and
beaten by police and others in the cell. (KENYA) 28
One of the most common legal provisions discriminating against street children is the
legacy of outdated ‘vagrancy’ legislation left over from colonial times. As an
illustration, a study in Bombay reported that an astounding 74.6% of children sent to
remand homes were on charges of ‘vagrancy’ or ‘suspicion’. 29
28 Boy participant, National Workshop on Street
Children and juvenile justice, Nairobi, Kenya, 6-7
March 2003.
29 Human Rights Watch, Police Abuse and
Killings of Street Children in India, November
1996, p.14, referring to UNICEF / India Ministry
of Labour research.
31 Information from the Inter NGO Forum for
Street Children, Kampala, May 2004. This issue
is featured as a case study in Chapter 6.
32 Amendment to the Criminal Code through
the Minor Offences (Miscellaneous Provisions)
Act No. 29 of 1989, now Cap 230 Laws of
Nigeria, 1990.
33 HDI / CSC, Street Children and Juvenile
Justice in Lagos State, 2004.
52
Huge numbers of children are being arrested and locked up simply for being poor and
in the wrong place at the wrong time. ‘Vagrancy’ provisions criminalize poverty and
demonstrate the confusion between social welfare and criminal justice systems as
detention orders are often framed as ‘safe custody’ or ‘protective custody orders’. As
the testimony of children will show in Chapter 6, such detention is rarely ‘safe’ or
‘protective’. The international human rights community calls for an immediate
decriminalisation of ‘vagrancy’ as well as status offences such as truancy and running
away from home. Street children may be arrested on the grounds of ‘vagrancy’ either
individually, in small groups, or in larger numbers as part of more systematic ‘roundups’ or ‘street sweeps’ which are considered separately, in chapter 6.
Progress has been made in some countries such as Uganda where being a ‘rogue’ or
‘vagabond’ have now been decriminalised under the Children’s Statute30 (although this
doesn’t seem to have had much of an impacted on the ground as demonstrated by the
current government policy of routinely rounding up street children).31 Likewise, in the
case of Nigeria, although the government declared an amendment to the relevant
sections of the Criminal Code in 1989, deeming it unconstitutional for the police to
arrest anyone for “wandering”,32 the police still conduct raids and street children are
still being arrested simply for being poor.33
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Case study
CURFEWS AND THE ANTI-VAGRANCY LAW IN THE PHILIPPINES
I was caught because of the curfew.
I went to a girlfriend.
I helped peel and slice vegetables. I did not notice the time.
The police drove by, I ran and I was caught.”
“I was signalling a truck to move backwards when a patrol came
by. I was arrested because it was already curfew hours.
I forgot that it was already curfew hours.
(DENNIS, AGED 17, AND DENCIO, DAVAO CITY, JULY 2002)
As part of the intensified anti-crime campaign waged by President Gloria
Macapagal-Arroyo in early 2003, the Philippine National Police revealed plans to
explore the possibility of talking with the seventeen city and municipal mayors of
Metro Manila to implement a ban on under-18s on the streets at night. Strict curfew
laws have been implemented in the cities of Olongapo, Davao, and General Santos. In
2002, the cities of Manila and Marikina imposed a nightly curfew on children, and
police officials said that crime incidents in these two cities had dropped
significantly following the implementation of the curfew. On the other hand, it has
been noted that a problem arises in areas where “there are no existing drop-in and
processing centres because children arrested during night time are placed in jails
together with other adult inmates.” Furthermore, abuses by law enforcers have been
documented. In many cases, the children were just victims of circumstances.
Apparently, policemen fail to explain to children the reason why they had been
arrested, particularly for violating the Anti-Vagrancy Law. The logic for the
imposition of the Anti-Vagrancy Law stemmed from the need to protect children
from the perils of the street at night. Furthermore, the Revised Penal Code considers
vagrancy as an offence.
4
One participant to the National Capital Region Regional Workshop, during the sentence
completion exercise, readily identified the incumbent mayor of the City of Manila as one
of the persons he disliked: “Because he has us arrested” was the child’s reply.
Notwithstanding a particular government’s or community’s support for anti-vagrancy
laws and campaigns and the perceived “merits” of such moves in combating crime,
the international human rights community lobbies strongly against outdated
legislation such as anti-vagrancy laws, under which, children are being arrested
simply for being on the streets due to a lack of social safety nets. 34
B.2 SUBSTANCE ABUSE
First case [arrest], I was at a shabu [amphetamines]
session. The police caught us. Second case, I was high on
marijuana. I hit two people who were on a date. The police had
caught me and they saw that I had some marijuana in my pocket.
Third case, we stole a fighting cock. Fourth case, I stole a watch
from my grandmother, and some money many times. I did not know
that she had already filed a complaint and that there was already a
warrant of arrest. Once, I came home, the police arrested
me. I did it because of my addiction to drugs. (PHILIPPINES)35
pp.88-89.
35 Donald, aged 17, a participant to the
workshop in Mindanao, July 2002, quoted in
ibid, p.80.
53
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On the understanding that substance abuse is linked to individual choice (albeit a
‘limited’ or a ‘non’-choice as discussed previously), street children in many countries
nevertheless abuse substances for a number of reasons, for example:
•
•
•
•
•
to quell hunger;
for escapism / to anaesthetise physical or emotional pain;
as part of peer bonding activities linked to friendship and street gang culture;
to keep street-living children awake for work and / or alert to possible violence;
to facilitate sleep during the cold nights.
In many countries street children sniff glue due to its low cost and easy availability
and this may be mixed with other substances such as petrol, as is the case in Kenya.
Other substances used by street children include alcohol, tobacco, marijuana and, in
some places, crack, amphetamines, cough syrups containing alchohol and/or codine,
black market prescription pain medications and opium. Cocaine and heroine are
generally less common due to prohibitively high prices.
I've been living on the streets for the past 5 years…I've
tried just about everything: glue, marijuana, crack, hard
liquor and cigarettes. Now I just sniff glue. I do it because I feel
very sad. I feel like I'm really alone. I don't want to live on
the streets. I've already suffered a lot and I'm only 15
years old. (NICARAGUA) 37
The types of substances used by street children vary greatly, influenced by local
circumstances, availability, cultural practices and geography (some countries / areas
that lie in processing regions and/or along trafficking routes are particularly badly
affected by high levels of drug abuse) and this list is in no way exhaustive or
attributable to all countries.38 However, substance abuse is yet another risk factor that
is likely to bring street children into contact with the criminal justice system for the
following reasons:
•
The practice of using drugs is, in itself, usually criminalized: As reported
in 2001, offences in Brazil involving adolescents with drugs make up about 70%
of all offences. Whereas middle class young people who consume drugs are
considered in the context of a medical approach, young people from the lower
classes who sell drugs are seen purely as criminals. This has led to a huge process
of criminalisation of poor young people who overpopulate institutions for
adolescent offenders. (Brazil)39
•
Selling, trafficking drugs or acting as couriers as part of gangs:
Because of the gang, I peddled shabu [amphetamines]
and when the pushers I knew no longer liked me, I was
sold out to the authorities. I was framed, so when the
police conducted a raid, I was caught. (PHILIPPINES) 40
37 Marilin, ‘Voices of Nicaragua’, taken from
Radio Netherlands website,
www.rnw.nl/humanrights/html/stories3.html
38 For example, an example of another
substance abused in Romania is Aurolac, a
paint thinner that is cheap and easy to obtain,
but also very addictive and damaging. However,
despite cost implication already mentioned,
more recent reports suggest that heroin is
becoming more common among street children
in Romania, also increasing the risk of HIV/AIDS
through groups of children sharing needles to
inject. (Sinagra, L., ‘Beneath Bucharest’, City
Pages.Com, 7 July 2001.
54
•
Committing crimes such as theft in order to satisfy addiction: “Addiction to
glue sniffing is making street children more dependent on substances. This
dependency is resulting in an increase in street children carrying out petty thefts.
This trend, in the course of time, will lead children to ever more violent and
unsocial activities.” (Nepal)41
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Crack puts you crazy, like you’re flying, and then when
you come down, it’ll make you do anything to get another
fix, even rob your neighbours, your friends, your own family
even… it’s not like marijuana, which just makes you feel
at ease with everybody… (NICARAGUA) 42
•
Crimes involving violence may be committed under the influence
of drugs:
It makes the user more aggressive… this drug, crack, it
makes you really violent, I tell you… when I smoke up
and somebody insults me, I immediately want to kill them, to get
a machete and do them in, to defend myself… I don’t stop and
think, talk to them, ask them why or whatever… all I want to do
is kill them… it’s the drug, I tell you, that’s where the
violence comes from. (NICARAGUA) 43
GUATEMALA: street boy inhaling
glue, Guatemala City. © Richard
Hanson/The Toybox Charity
4
In terms of treatment in detention, drug addiction and/or withdrawal makes young
people more vulnerable to exploitation (sexual abuse, recruitment for criminal activities,
recruitment as informers, giving coerced testimony, etc.) by guards or other detainees
who may have access to drugs. Also, for street children who engage in substance abuse,
this can provide yet another weapon in the police arsenal with which to inflict abuse and
humiliation. For example, according to one 15-year-old boy in Guatemala:
The police treat us badly. […] They also take our paint
thinner and pour it over our heads. They’ve done that to
me five times. It’s awful, it hurts really bad. It gets in your eyes
and burns; for half an hour you can’t see anything.
(GUATEMALA) 44
In this case, in addition to the pain caused, and the added distress a drug addict might
feel at being deprived of his or her ‘stash’ there may be an element of the police
wanting to ‘teach the drug user a lesson.’
Even if particular street children are not actually involved in substance abuse, they are
often assumed to be. Populist perceptions that all street children are drug addicts have
further restricted their access to basic services, while rendering them more
susceptible to verbal abuse and humiliation at the hands of the public and police,
regardless of whether not they are actually abusing substances:
If you get sick on the streets, the big people take you to
the hospital but sometimes people don’t pay attention to
you – ‘no, I’m not giving you money because you will
spend it on glue…’ It’s really hurting to the other guys.
There’s nothing you can do about it. (KENYA) 45
39 São Martinho, No Mundo da Rua: Alternativas
à Aplicação de Medidas Sócio-Educativas, 2001,
pp.48 and 55.
40 Child participant in the National Children’s
Workshop, August 2002, quoted in UP CIDS PST,
Painted Gray Faces, 2003, p.83.
41 Rai, A., Ghimire, K.P., Shrestha, P. and
Tuladhar, S., Glue Sniffing Among Street
Children in the Kathmandu Valley, Child Workers
in Nepal Concerned Centre, 2002, pp. 8-9.
42 Quoted in Rodgers, D. (2002) ‘We live in a
State of Siege’ – Violence, Crime and Gangs in
Post-Conflict Urban Nicaragua’, Development
Studies Institute, London School of Economics
and Political Science, September 2002. Crack
began to supplant marijuana and glue as drug
of choice in Nicaragua from around mid-1999,
rapidly spreading to such an extent that today it
is omnipresent. This shift has also been
accompanied by a dramatic increase in violent
crime on the streets, largely due, it would
appear, to the increased ‘high’ that crack offers
its users.
43 Ibid.
44 Interview with Beto, Guatemala City, 3
September 1996, quoted in Human Rights
Watch, Guatemala’s Forgotten Children, 1997,
pp.22-23.
45 Child participants at the National Workshop
on Street Children and Juvenile Justice, Nairobi,
Kenya, March 2003, quoted in CSC, Street
Children and Juvenile Justice in Kenya, 2004.
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Nobody in the society respects you or wants to see you.
The drivers wind up the windows of the car and when you
beg, the passers-by will just ignore you because of this song that
was sung: ‘woi woi chokora usiwape pesa za kununua gamu’
(‘gosh gosh, don’t give the streets kids money ‘cos it’s for buying
glue’). They fear that they want money for glue or want to steal
their hubcaps. They don’t want to associate with you or
touch you.” (KENYA) 45
All of us were girls. We got jailed in February 20, 2001
because of failing to observe the curfew. We came from a
birthday party. The policemen were very rude towards us and
they accused us of using [glue]. They took photographs of us
with some glue in our possession even if we never had
any. We cleaned the toilet and they cut our hair.
(PHILIPPINES) 46
This negative perception can be further reinforced by discrimination based on other
factors, such as in cases where the children come from ethnic minorities. For example,
in Bulgaria: “Many of the children are addicted to glue or liquid bronze which they
inhale from plastic bags. A fourteen-year-old boy told Human Rights Watch, ‘the best
part of living on the street is the glue. I haven’t eaten in two days because I’m not
hungry. The glue makes me feel that way’. As a result, street children are viewed by
police and private citizens as criminals. Their Roma identity further reinforces this
image.”47
46 Roxanne, aged 16, quoted in UP CIDS PST,
Painted Gray Faces,2003, p.108.
47 Human Rights Watch, Children of Bulgaria:
Police Violence and Arbitrary Confinement,
September 1996, p.3.
48 Tandon, S.L., ‘Fettered Young: Children in
Conflict with the Law and Children in Prisons’ in
Butterflies, My Name is Today, 2003, p.14.
49 Interview with Victoria Monzón, Director of
the Guatemalan government agency charged
with administering juvenile detention and
protection services (Tratamiento y Orientación
de Menores), 4 September 1996, quoted in
56
In addition to substance abuse being yet another a risk factor in relation to street
children’s contact with, and treatment within, the criminal justice system, it is also
worth mentioning that valuable opportunities for counselling and therapy are being
wasted throughout the system. Medical and counselling services in detention are
generally poor or non-existent. For example, in India: “Drug abuse and smoking in
boys’ homes is another major problem. Instead of sensitizing and educating these boys
regarding the harmful effects of drugs, and motivating them to go in for de-addiction,
the staff penalizes and ridicules them.”48 There is a general failure to provide the
necessary educational and rehabilitative programmes required to break the drugcrime cycle at any of the key stages of the system: prevention, diversion or
alternatives to detention. This helps to perpetuate the ‘revolving door’ experiences of
many street children on the streets and in detention. For example, in Guatemala,
“there is no detection of psychological issues, no treatment for drug withdrawal, and
no programmes for drug addiction. When the children are released in six or twelve
months, they haven’t been helped. They go out, and they get back on drugs.”49
Furthermore, lack of treatment for withdrawal can be particularly agonizing for
children facing short term detention.
Without specific services targeted at substance abusers, it is likely that reform efforts
will be severely hampered. This is especially true given the immense challenges of
working with street children who suffer from addictions: substance abuse interferes
with their ability to engage in the ‘choice’ process that is key to interventions with
street children (identifying the choices the child has already made, expanding the
choices available to them and empowering the child to make those choices).
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B.3 INVOLVEMENT / COERCION IN ADULT CRIMINAL ACTIVITY
My Grandmother is in her 70s. She’s been feeding us out
of her pension money. She always said to me, ‘My boy,
don’t steal.’ But these two men asked me to steal with them.
They told me, ‘If you steal for us we will clothe and feed you.’ I
said ‘No’, but they then said, ‘Then we’ll kill you and bury
you.’ So that’s why I started to steal for them. (MONGOLIA) 50
In line with the ‘choice’ paradigm established previously in this report, street children
– dependent on their individual risk and protective factors amongst other things – may
choose to become involved in adult criminal activity (as a result of free choice or
limited choice), or they may be forced or coerced (as a result of non-choice). Street
children are particularly useful to adult criminals for the following reasons:
•
They are small enough to climb through windows and small spaces to assist
in burglaries, and they are nimble enough to pick-pocket successfully:
“I go inside a house first by opening the window in order for the other gang
members to go inside and cart away all the things from the house.” (Philippines)51
•
There is a plentiful supply of street children desperate enough (especially
if they need money or drugs to support drug habits) to undertake unpleasant or
dangerous tasks that adult criminals may be unwilling to perform, – e.g. as ‘ants’
in cross-border trafficking.52
•
They are easily threatened and controlled by using a combination of ‘carrot
and stick’ approaches –i.e. through violence and intimidation offset with
‘protection’ and/or small gifts of food or drugs: e.g. one boy found himself living
in the company of a man who promised to take care of him for as long as he
followed everything the man asked him to do
4
… because if I don’t, he’s going to beat me up. He also
asked me to steal a pair of trousers. He also
bought solvent for me. (PHILIPPINES) 53
•
•
•
They are expendable and can be easily sacrificed (even killed) or used as
scapegoats when an operation goes wrong: e.g. reportedly, street children who
are being used as drug couriers and as accomplices to car-theft rings are killed
when they learn too much or otherwise become a liability. (Guatemala)54
They may be deliberately chosen for being under the age of criminal
responsibility and are thus (theoretically) exempt from prosecution if caught
(see Brazil case study below).
They are ideally placed to sell drugs amongst their peers.
The activities they commonly perform include theft (burglary, petty theft and pickpocketing), commercial sexual exploitation, organised begging and drug vending /
trafficking / general ‘gopher’ jobs for drug gangs. If a street child is arrested along with
an adult, they run the risk of being detained and tried alongside them as adults, rather
than being processed as a child. Involvement or coercion in adult criminal gangs may
take place on an individual level, or in small groups, or as part of a more structured,
organised criminal gang, syndicate or trafficking ring, as illustrated by the following
examples. The issue of street gangs is discussed in more detail below.
50 At the time of this interview, Enkbater had
been in cells for 4 months without appearing in
court. Footage from Blewett, K. and Woods, B.,
Kids Behind Bars [film], True Vision productions,
2001.
51 12-year-old participant at the Manila Street
Children’s Workshop on Street Children and
Juvenile Justice, quoted in UP CIDS PST, Painted
Gray Faces, 2003, p.83.
52 For example in Romania: “Street children,
former prisoners and rootless adolescents
leaving state institutions have easily been
recruited in the fringes of […] expanding
corrupt activities: as ‘ants’ for carrying crossborder illicit consignments; as drug dealers to
their peers; and as members of organised
begging or prostitution rings”, Giles, Prof. G.W.,
Turbulent Transitions, 2002, p.148.
53 A participant to the First Metro Manila
Street Children’s Conference in 1990, cited in
UP CIDS PST, Painted Gray Faces, 2003, p.3.
54 Human Rights Watch, Guatemala’s Forgotten
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Case study
Ensnared Young: School dropouts and runaway children on
the streets are soft targets for adult criminals on
the lookout for new recruits to their gangs – INDIA 55
“When Jeetu and Dinesh, two nine-year-olds, were arrested by the Government
Railway Police and booked for pick-pocketing at the Patna Junction, their insistent
plea was that they were not thieves, but were forced into crime by a local criminal,
Raju Sharma. According to Dinesh, Raju caught hold of him one evening and took
him forcibly to his hide-out. Here, Raju threatened him with dire consequences if he
defied his orders to pick the pockets of railway passengers. This marked the
beginning of Dinesh’s nightmarish journey. In a few days, Dinesh roped in his cousin,
Jeetu. Both came from poor slum families. Taking advantage of the confusion at the
entry points to compartments, the boys would steal passengers’ wallets when they
were alighting or boarding trains. Once, Raju even threatened to throw Jeetu off a
running train when he failed to pick a single pocket on a particular day. According to
the police, Raju had several young recruits like Jeetu and Dinesh working for him.”
Case study
DEHUMANISATION AND BRUTALITY AT THE HANDS OF MAFIAS PAKISTAN 56
“Many economic activities of the street children are controlled by "territories"
which are guarded by members or gangs. A number of these children are terrorized
by such gangs and they end up working for them to sell drugs or steal. According to
the Director of the Human Rights Commission of Pakistan, "There are certain mafias
who take the children on the street and exploit them." "They are the mafias who run
begging rings, child prostitution rings." In a report into gang activity on the streets
of Pakistan, the Commission found such practices were worryingly widespread. In
Sheikhupura, in the Punjab province, one such gang would kidnap young children
from the street, break their legs or arms and let the bones reset crooked, and then
send them back into the streets to beg. Any alms collected would then be handed
over at the end of the day under the threat of beating. Another gang was traced to
Multan, also in Punjab, where kidnapped boys between 10 and 14 years were
castrated and then sold to the circus and stage shows for entertainment.”
Case study
STREET CHILDREN AND THE DRUG TRADE - BRAZIL 57
55 ‘Innocence behind the bars’, The Hindustan
Times, Patna, India, 5 October 1999, reproduced
in Tandon, S.L., ‘Fettered Young’, 2003, p.11.
56 Gannon, K., ‘Few Look out for Street
Children’, Associated Press, 20 April 2000, cited
in AMAL Human Development Network and
2004.
1997, p.11.
58
Under the Statute of the Child and Adolescent (ECA), unlike adults, children under 18
can only be held in the juvenile detention system for a maximum of three years and
this therefore makes them ideal couriers for drug gangs. “But they are often killed
because they know too much, steal too much, or get caught in the crossfire. The
hierarchy of the favela drug trade is a vertical one, and children are recruited into
the lowest level, serving primarily as lookouts. They progress to running errands for
the hillside dealers, and if they are successful, they begin delivering drugs to
customers. Survivors from these operations may become armed ‘controllers’
(security guards who protect the operation and proceeds of drug transactions).
Finally, there are the corporate levels of the local drug business, but few children
ever last that long. Most die while they are still at the lower end of the hierarchy.
When a hillside dealer is dissatisfied with a child’s work, or decides that the youth is
dangerous as a witness, he or she is simply killed. And altogether, it is estimated
that as many as four to five street children are murdered each day throughout
Brazil, and two each day in Rio de Janeiro alone.”
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B.4 STREET GANGS
As already shown above in the sections on substance abuse and involvement /
coercion in adult criminal activity, street children’s involvement in ‘gangs’ is often
associated with criminal behaviour. However, it is extremely important to understand
that the nature of gang activity varies greatly on a case by case basis. Just as it can be
one of the main risk factors in an individual child’s experience of crime, it can also be
one of the main protective factors, depending on the nature of the gang, the character
of the leader, the local environment, the extent and type of substance abuse engaged
in and so on.
There was a gang war everyday. I did not want to join
because I feared that I might die. One of my companions
was raped. Her belly was sliced open. She was murdered.
I was forced [to join the group]. They slapped me and I
cried. (PHILIPPINES) 58
Street children join gangs in response to social exclusion, loneliness and the need for
protection, in a society that has failed to provide them with their basic physical and
emotional needs.59 In many countries it is a key coping strategy for survival in a
hostile environment and the negative aspects of gang involvement must therefore be
balanced against the positive ones. Negative aspects include violence (to maintain
discipline and assert authority within the hierarchy of the gang as well as taking the
form of inter-gang violence),60 introduction to substance abuse and potential for
increased criminal behaviour. On the other hand, positive aspects of gang involvement
include mutual protection from outside threats, a sense of belonging, security and
pride (often gained through undergoing harsh initiation rites), friendship and
emotional and financial support (gang members may often share resources).
PHILIPPINES: Girl drawing a
picture to illustrate the positive
and negative aspects of gangs /
peer groups at the Regional
Fundamentally we are friends who hang out
together. We started this gang about five years
ago to protect ourselves from other gangs. (NICARAGUA) 61
The need for a case by case approach is illustrated in the example of street children in
Angola cited earlier (in the section on urbanization) which shows how one NGO in
Luanda has identified two distinct types of male gangs operating in the same city: type
1 are the relatively stable groups that are heavily integrated into the local economy
and have self-imposed codes of conduct that forbid stealing in their area so as not to
upset the balance of the mutually-respectful relationships they have developed with
local community members; type 2 are less stable, more crime-prone groups.62
Similarly, in the Philippines, the associations that street children form with their peers
are often described by the term ‘barkada’ - a colloquial Filipino word with both
positive and negative connotations which can be translated as “friend/s, gang,
gangmates, peers, peer group, buddy/buddies, colleagues, and companion/s.”63 Just
as this term has both positive and negative connotations, the link between gang
membership and crime is inconclusive in the Philippines: results of studies vary,
suggesting that the commission of crimes does not necessarily mean that the children
in question are part of a gang. Different studies in the Philippines indicate that
statistics for gang membership amongst children in conflict with the law range from
18.2% to 40.9%. Therefore in the Philippines, at least, whether gang membership is a
contributory factor to the commission of an offence or not, may depend on the
individual experience of the child.64 This brings us back once again to the importance
of an individualized approach to street children.
58 10-year old Jasmine, participant at the
workshop in Mindanao, Philippines, July 2002,
quoted in UP CIDS PST, Painted Gray Faces,
2003, p.73.
60 Ibid.
61 Kokic, M. (2003) ‘Help for Nicaragua’s Violent
Slums’, International Federation of Red Cross
and Red Crescent Societies News, 18
September 2003.
http://www.ifrc.org/docs/news/03/03091801/,
cited in Casa Alianza Nicaragua and Consortium
for Street Children, Street Children and Juvenile
Justice in Nicaragua, February 2004.
63 UP CIDS PST, Painted Gray Faces, 2003, p.13.
64 Ibid, pp.24 and 149.
59
4
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The importance of gangs or peer groups as support structures for street children
should not be underestimated: in the context of the criminal justice system, the
potential to capitalize on the positive aspects of gangs, and minimize the negative
aspects as much as possible, is key to the relationship-building that needs to underpin
prevention as well as diversion efforts. “For the social worker attempting to establish
contact with street children, the leader is […] the key-element for approaching the
group, and will often control the extent to which group members access or take
advantage of external interventions.”65
Case study
THE GROWTH OF STREET GANGS IN NICARAGUA 66
An important feature of street life in Nicaragua and other countries in Central
America is the increasing emergence of street gangs. According to one newspaper
article from May 2003, “The influence of US gang culture is evident in poor
neighbourhoods or barrios across Central America,” with over 100 different gangs
estimated to operate in Managua, the capital of Nicaragua.67 Membership in these
groups has offered many from the poorer communities a way to fit into the new
realities of post-conflict Nicaragua. As one Red Cross worker put it, “If home life is
tough, children will look outside the home to get the love and support they need.
Look around, you will see all these young kids hanging around the older gang
members. They are the role models.”68
Many gang members agree: "Fundamentally we are friends who hang out
together…" explains the leader of one, "We started this gang about five years ago to
protect ourselves from other gangs." Most gangs are male only, and often act as the
informal leaders of marginalized communities, while others develop into criminal
groups and commit a range of offences from kidnapping to violent armed robberies
to pay for deep-rooted drug addictions. Gangs will often cross each other in the fight
for territory, sometimes for a few city blocks or a football field. Their weapons range
from primitive sticks and knives, to home-made 'zip' guns, to AK-47 assault rifles
and fragmentation grenades.69 There is an unofficial curfew restricting many parts
of Managua at night and 40,000 gang members were arrested in 2001 alone.70
65 European Network on Street Children
Worldwide,
http://www.enscw.org/eng/satellite/country_sal
vati_copii.htm with reference to the group
dynamics of street children in Romania.
66 Taken from CAN / CSC, Street Children and
Juvenile Justice in Nicaragua, 2004.
67 Widdicombe, R. & D. Campbell (2003) ‘Poor
Neighbours Fall Prey to US Gang Culture’, The
Guardian, 27 May 2003.
68 Kokic, M. (2003) ‘Help for Nicaragua’s
Violent Slums’, International Federation of Red
Cross and Red Crescent Societies News, 18
September 2003. /
69 Ibid.
70 Widdicombe, R. & D. Campbell (2003) ‘Poor
Neighbours Fall Prey to US Gang Culture’, The
Guardian, 27 May 2003.
The official response to street gangs in Nicaragua has been a mix of repression and
attempts to open a dialogue with gangs and young people, and in Managua police
have set up ‘prevention committees’ to visit gang members and their families. The
organisation Ceprev has also worked with more than 3,000 bandilleros (gang
members) over the past six years in one district of Managua with the aim of
improving their relations with their families. Its director, Monica Zalaquette, says:
"The problem is not economic poverty, it is the poverty of our family culture - that's
what we have to change."71 The widespread lack of services is also a contributing
factor according to Bruce Harris of Casa Alianza: “For years, the authorities have left
young people without hope, without access to school or jobs and the only
governmental response to youth dissent has been repression. We have forced the
kids to the extremes of society and they have responded with violence. Gangs can
no longer be ignored, especially if we want to live in peace.”72
71 Ibid.
72 Ibid.
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Chapter summary
The ‘circle of experience’ shows how the same issues that cause children to
move to the streets in the first place impact on the type of behaviour in which
they engage whilst on the street as well the treatment they subsequently
experience within the criminal justice system.
This is regulated by the context of choices, limited choices and non-choices
specific to each individual child. Choices can become increasingly limited as
children progress around the ‘circle’ and there is therefore a need for early
intervention in the cycle in order to maximise the opportunities available to
children.
It is for this reason that the overall approach to reform adopted in this book
prioritises prevention, diversion and alternatives to detention as areas at which
to target interventions. Improved opportunities for girls and boys are best
4
explored through the 3-stage ‘choice process’ of understanding, and expanding
the choices available to children and then empowering them to make those
choices.
PHILIPPINES: Taking part in
activities at the Regional
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5
HOW DOES IT ALL WORK?
PROCESS AND ACTORS
Chapter overview
•
Explains, with the aid of illustrations, the different stages of the
criminal justice system through which street children pass and
how the process as it stands in many countries is comparable
to a ‘revolving door’ which ‘recycles’ children from the streets
into detention and then back onto the streets again and again,
often leaving them worse off than they were before.
•
Maps out the key actors in the ‘five pillars’ of the juvenile
justice system (law enforcement, prosecution, courts, correction
and community) and calls for an assessment of ways in which
we can:
–
Protect children from negative / harmful relationships as
much as possible;
–
Assess to what extent some relationships between
children and the formal justice system can be bypassed
altogether;
–
–
Transform negative relationships into more positive ones;
Identify where children are falling through the nets of
support altogether and build up positive ‘safety nets’ of
relationships instead through sensitisation and collaboration.
• Introduces a practical ‘mapping exercise’ involving visual
diagrams or a group of people and a ball of string (!) to map out
these relationships in a particular local or national context.
62
Chapter 5: How does it all work?
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STREET CHILDREN IN THE CRIMINAL JUSTICE
SYSTEM – A REVOLVING DOOR
The diagram below shows a generalised / typical overview (based on experiences from
many countries) of what happens to street children caught up in the criminal justice
system in practice (as opposed to theory). The process is likened to ‘a revolving door’:
however far the children enter into the system, without intervention, they are likely
to end up back on the streets again where they started from – most likely even worse
off than before, with additional mental, physical and sexual scarring to add to the
existing catalogue of difficult experiences with which they must already cope.
Based on the first hand experiences of children who took part in the CSC project as
well as secondary research from other countries, this diagram broadly represents the
experience for street children in countries that have repressive justice systems, where
reform of juvenile justice is either non-existent or in its infancy.
It is in no way intended to indicate that all countries are the same, nor
to disregard the commendable efforts of civil society organisations and
governments that are working towards more child-friendly options for
the processing of children through the criminal justice system. These
interventions will be discussed in detail in Chapter 7 which indicates key
points for interventions needed to break the revolving door cycle of life
on the streets or in detention, focusing on the stages of prevention,
Accompanying notes to diagram:
The following accompanying notes to the diagram give a brief overview of issues
involved at each stage of the process. A more detailed insight based on the children’s
own experiences is given in Chapter 6 on ‘Street children’s experiences in the injustice
system.’ Although not all of the conditions mentioned here apply to every justice
system, they are nevertheless common to many.
5
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They see us as objects of torture. You want to practice
boxing, you choose a child. You want to kick someone,
you kick a street child because they are there. (KENYA) 1
Street children are particularly vulnerable to harassment, including threats, insults
and physical and sexual abuse. This may be committed by both members of the public
as well as police officers themselves. The police are therefore doubly responsible for
human rights violations, as perpetrators themselves, and for failing to protect children
from abuse by others. The police may also be guilty of using their power, by
threatening arrest, to extort sexual favours or money from street children (CRC 34,36).
2 ARREST
1 Susan, child participant, National Workshop
Kenya, 6-7 March 2003.
2 Eugene, aged 15, child participant, Street
Children and Juvenile Justice Project,
Philippines.
3 Participants in the National Street Children
Workshop, Nairobi, Kenya, 22 February 2003.
3 POLICE CELLS
64
Policemen often arrest us for sleeping under a
bridge. (PHILIPPINES) 2
Arrest may be with a warrant. For example if a particular child is suspected of having
committed a crime, a judge may issue a warrant for their arrest as part of an ongoing
investigation. However, by far the majority of arrests of street children are without a
warrant. Depending on the legislation in place in a particular country, this type of arrest
may be legal or illegal. For example, arrest without a warrant is permitted if the child is
caught in the act of committing a crime (in flagrante). Contrary to international human
rights standards (RG 56), legislation criminalizing ‘truancy’, ‘running away’ and
‘vagrancy’ may also be in place – to which street children are especially vulnerable. In
these cases there is an obvious case for legislative reform. Furthermore, in some
countries there are legal provisions for ‘preventive arrest’ – i.e. in order to stop someone
suspected of being about to commit a crime. This form of arbitrary arrest violates
international human rights law and is subject to misuse which particularly discriminates
against street children. Illegal arrest is where street children are picked up by the police,
either individually or in groups as part of ‘round-ups’, for no particular reason at all, or as
‘scapegoats’ for a crime which has been committed by someone else (CRC 376). The
manner of arrest may also violate human rights standards, for example use of force,
unnecessary use of handcuffs or restraints, degrading treatment etc. In Kenya, for
example, the street children complained particularly about being transported to the
police station in car boots (trunks). In addition to the specific example from Kenya,
abuses may occur more generally during transport between facilities (JDL 26) as children
are likely be mixed with adult detainees, including convicted prisoners, or with much
older children who may be from rival groups, or charged or convicted of serious crimes.
The mode of transportation itself may be unsafe, lack adequate ventilation or expose
children to extreme heat or cold, or entail hours of travel without food or toilet breaks.
This applies not only to the stage following arrest, but also at other stages where
transportation is necessary.
In the cells, there’s no good meal. It’s bad meal. It’s a cup
of tea but it’s called breakfast by name, but it’s not really
breakfast... It tastes like it is for cows, but not for a living being”.
“The girls go into the police cell and have to do sexual
intercourse with the police to get released, but she is not
released. The policeman is even 42 and the girl is 16. It’s
really bad. (KENYA) 3
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Following arrest, the children are taken to the police station where abuse is rampant.
Violence, intimidation, torture, forced confessions, false accusations, exploitation (e.g.
children being made to clean the toilets or run errands), extortion, inhumane
conditions (including lack of food or water, overcrowding, no bedding or toilet
facilities, poor light and temperature extremes) and mixing of children with adults are
frighteningly commonplace (CRC 3.3, JDL 31-37, BJ 13.5, 24, 26.2, 34, 19, 37a). Even
if children are detained separately from adults they are frequently not adequately
separated from child detainees of significantly different ages or criminal statuses. Girls
are especially likely to be held with adults and to be inadequately separated from other
categories of children because there are often insufficient facilities for detaining girls.
Girls and boys may be beaten up or sexually abused (CRC 19, 34), have their money
stolen (to ‘teach them a lesson’) and released straight away, or they may be held for
longer (usually exceeding the period of time legislated for) pending transfer to a
remand home or other place of detention. Parents or guardians (including social
welfare officers in cases where guardians cannot be traced) are frequently not
informed of the situation (CRC 40.2bii, BJ 7.1, 10.1) and the assistance of a lawyer is
the exception rather than the rule (CRC 37d, JDL 18a, BJ15.1, 24, VG16).
In some cases at this stage children go to prosecution offices for investigation and
possible referral to court. Most countries require such a step within 24 to 48 hours of
detention (in some countries a trip to a judge serves the same purpose). However,
street children are often held for longer periods of time before having their detention
reviewed, and in some systems are frequently released to the street or to the police for
return to their families after having gone to the prosecution office but without having
seen a judge. In such systems this is the stage where the prosecutor should investigate
cases of abuse in custody, but this rarely happens with street children.
I did not know what is happening in the case filed
against me because I wasn’t even brought to
4
JUVENILE
(OR ADULT COURT)
5
court. (PHILIPPINES) 4
The child may or may not be taken to court in person at this stage for the purposes of the
authorities securing a ‘remand warrant’ from the judge (legal permission to further detain
an individual pending hearing of the case). If they are, then – once again – legal
representation for the child is very unlikely. See stage 6 for further details about courts.
They have no proper place for us… Most of the time I
slept in standing position and there were 8 individuals in
a small lock up room.” “The food provided inside the jails is low
standard and unhygienic.” “They torture us physically - kicking,
beating with leather shoes and sticks, slapping and shouting
abuse.” “They use different cruel styles of punishment like being
beaten, hung upside down, whipped with a rubber strap or
leather slipper.” “We are sometimes made to wear iron
shackling. (PAKISTAN) 5
Following issue of a remand warrant (or occasionally without, in cases where children
are transferred directly from the police station to the remand home with no regard for
due process) the child is then transferred to a remand home (place of temporary
detention for those accused of a crime pending outcome at trial). The remand home
may be a specific ‘juvenile remand home’ or it may be for adults, with or without a
separate wing for children. In fewer cases, often depending on the proximity of
institutions, they may be transferred into an adult prison (again, with or without a
5 REMAND HOME OR
ADULT PRISON
4 Simeon, aged 15, child participant, Street
Children and Juvenile Justice Project,
Philippines.
5 Child participants, Street Children and
Juvenile Justice Project, Pakistan, cited in
AMAL Human Development Network and
2004.
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separate children’s wing). Due to widespread lack of birth certificates and identity
documents (CRC 7, JDL 79-80, VG 12) it is quite common for children to be registered
as being older than they really are. This is either for the malicious purpose of having
them subjected to harsher sentencing as adults, or – bizarrely – the opposite where, in
some cases due to legislative anomalies, it may be in the best interests of the child for
them to be processed as an adult.
At this stage, the child spends an extraordinary amount of time in often appalling
conditions of detention ranging from weeks to years pending the outcome from a trial
or hearing (JDL 17, BJ 14.1, 20). In spite of gradual improvements in this area in some
countries such as Romania, delays at this stage are commonplace in many other
countries due to bureaucracy, ineptitude, lack of transport, mistakes, lack of
communication between actors in the system and because nobody cares about what is
happening to these children: they have limited or no contact with responsible adults
who are able to plead their case – or who are rich enough to pay bribes to speed up
the process. Once again girls are especially likely to be detained with adults or in
otherwise inappropriate circumstances due to a lack of sufficient facilities for girls. In
addition, placement in facilities located at a distance from a child’s home area
decreases the chances that family and community links may be regularly maintained.
Children may be encouraged to plead guilty, regardless of whether or not they have
committed the offence with which they are charged, simply in order to speed up the
process. Conditions are usually very poor in terms of quality and quantity of food,
sleeping arrangements, overcrowding, poor hygiene, abuse and violence, exploitative
labour (CRC 32), lack of (or poor) education (CRC 28, 29, JDLS 18b, 38-46, RG 20-31),
recreational facilities (CRC 31, JDLS, 18c, 32, 47), psychological support and health
services. None of the children at this stage have been found guilty of committing a
crime. Social welfare cases (children in need of care and protection) are freely mixed
with children accused of committing crimes. In many cases staff are doing their best
with limited resources, but in only very few cases do children prefer the conditions
here to life on the streets where at least they have their independence, their own
social networks and the possibility of running away from abusers. In short, the
situation in most cases is deplorable. Escape from such institutions is not uncommon.
6
JUVENILE
(OR ADULT COURT)
We heard that in court we have to say that we were guilty
in presence of the magistrate. It is a custom. If
we don’t do so, the police will torture us and we will be
sent back into police custody. (BANGLADESH) 6
In general, there are very few courts designated as ‘juvenile courts’ (VG 14d). Hearings
are often held in an adult court. They may or may not be held on a separate day
and/or in a separate room and/or with a magistrate or judge specifically trained on
juvenile legislation. In many cases, even if the judge has a specialised knowledge of
the national legislation relating to children, they may well not be trained on
international human rights standards or sensitised to the specific needs and handling
of children. Features of a ‘child-friendly’ courtroom include, amongst other things:
informal setting – e.g. around a table rather than an intimidating ‘bench’ situation;
officials not wearing wigs or black robes; proceedings in jargon-free, simple language
that the child understands (VG11b); a qualified interpreter available if necessary (CRC
40.26vi, JDL 6); qualified and sensitised legal representation for the child; the child is
given an opportunity to speak and ask questions (CRC 12.2, BJ 14.2). Experiences of
the children at this stage were mixed, ranging from worst to best case scenarios. In
most cases, even where a range of sentencing options is provided for in legislation, the
most common method of disposal in the case of street children is some form of
detention.
6 13-year-old boy, quoted in Zaman Khan, S.,
Herds and Shepherds, 2000, p.25.
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If you come with possessions, you never keep them. The
good ones the staff take. The bad ones stay there. You say
you’re sick and nobody cares. You’re only given attention
when you’re on the verge of death. (KENYA) 7
As previously highlighted, alternatives to detention are rarely implemented, even if
they exist as legislative options at the discretion of the judge (CRC 40.36, BJ11, 17.1c,
VG15). Street children are particularly discriminated against in this regard, either
through prejudice, or due to their frequent lack of support structures which are
necessary to implement many of the alternatives (e.g. release to the custody of a
responsible parent or guardian, or payment of a fine).
7
(ALTERNATIVES
TO DETENTION)
APPROVED
SCHOOL OR
RE-EDUCATION
CENTRE
BORSTAL OR
PRISON
The majority of street children end up in some form of detention, usually in
institutions known as ‘approved schools’ or some form of ‘re-education centre’.
The objective of these institutions is supposedly the ‘reform’ or ‘rehabilitation’ of
children through education and training, with varying degrees of freedom and access
to the outside world. (They are nevertheless included under the overall heading of
‘detention’ as they are usually closed facilities). Although some of these institutions
are run with the best of intentions and maintain good community links, lack of
resources (human and financial) can still hamper efforts to provide the necessary care
and protection for children. In the worst cases, they are little more than prisons. Most
fall somewhere in between. The time spent here is determined by the court decision
and can be renewed indefinitely in most cases, especially in ‘care and protection’
cases. Many children stay until the upper age limit (often 18).
Detention in borstals (juvenile prisons) or adult prisons (with or without
separate areas for children) is a harsher sentence usually meted out for more
serious crimes. Transfer from an approved school or re-education centre to borstal or
prison may also be permitted in the case of children who are deemed by the
authorities to be ‘incorrigible.’ In general there are fewer borstals in countries than
regular prisons, so children are likely to be sent to an adult prison if it is nearer. In this
case, even where there are separate facilities or sleeping areas for children, children
often still have the opportunity to mix with adult criminals at meal times and during
recreation. Yet again girls are especially likely to be detained with adults due to lack
of facilities. Except in the cases of some approved schools, there is usually very little
or no attempt to prepare children for life after detention and this can be exacerbated
in cases where institutions are located far away from a child’s family and community.
After release, without the intervention of an NGO with residential facilities, children
end up back on the streets, worse off than before. Often they will have come into
contact with more hardened criminals, and are therefore better schooled in the art of
committing crime. On the other hand, those who are innocent and have been wrongly
imprisoned, or forced or coerced into admitting guilt, have no reason not to commit
crime in future if the justice system fails to distinguish between guilty and innocent.
5
RELATIONSHIPS IN THE CRIMINAL JUSTICE SYSTEM: ARE STREET
CHILDREN ‘FALLING THROUGH THE NET’, OR CARED FOR IN A NETWORK
OF SUPPORT?
The experiences of street children in the criminal justice system are defined by the
relationships they experience at each stage of the process described above. Due to the
‘non-system’ nature of the criminal justice system – i.e. the fact that it is made up of a
number of separate, overlapping systems often with conflicting agendas – these
relationships are very complex. The diagram on the following page represents an
illustration of how these relationships most often fail to protect and support children. For
simplicity, the actors have been grouped according to the ‘five pillars of the criminal
justice system’8: law enforcement, prosecution, courts, correction, and community.
8 Conceptualisation of the justice system in
terms of ‘five pillars’ is widely used in the
Philippines.
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Relationships between street children and actors in each of the pillars, as well as
across the different pillars of the system, may be positive, negative or neutral. For
example, a street child may have a positive and supportive relationship with their
family in the community, but a negative relationship with the police whereas the
community might have a ‘neutral’ relationship / not be involved at all in the
correction system. Unfortunately, due to widespread prejudice and criminalisation
of street children, based on the experiences of street children related in Chapter 6,
these relationships in many countries are more likely to be negative than positive.
Furthermore, the stages of the system where street children are spending the most
time – i.e. arrest, pre-/under trial detention and post-sentence detention – are also
the stages characterised by the most negative relationships.
As outlined in Chapter 2, interventions in the priority areas of juvenile justice reform
rely on building relationships that are supportive rather than abusive. For example:
•
Prevention (of street migration, of first-time offending or of re-offending)
depends not only on strengthening family, peer and community support
networks but also on building relationship bridges between this level and macrolevel decision makers who influence broader socio-economic policies;
•
Diversion programmes depend on transforming bi-lateral and multi-lateral
relationships between street children, police, social workers, community
members, family etc.;
•
Alternatives to detention depend on a street child’s relationships and support
networks being strong enough to produce an enabling environment to respond to
their multiple needs.
The challenge is therefore to:
•
Protect children from negative / harmful relationships as much as
possible (e.g. separation of pre-/under-trial children from convicted
children and from adults; development of children’s own coping strategies
to minimise peer bullying and abuse in the community);
•
Assess to what extent some relationships between children and the
formal justice system can be bypassed altogether (e.g. by minimising
contact between street children and the police / prosecution / courts /
detention centres through the development of prevention and diversion
programmes and alternatives to detention);
•
Transform negative relationships into more positive ones (e.g.
through awareness raising, sensitisation and training of actors in each of
the pillars; speeding up the processing of children through the system). In
this context, ‘positive’ relationships can mean not only facilitating
personnel to perform their job adequately, according to international
standards (which would be more of a ‘neutral’, professional relationship),
but also going further to proactively help children to develop to their fullest
potential in the context of rehabilitation and reintegration. This process
can be managed through a series of stages with intermediate goals.
•
Identify where children are falling through the nets of support
altogether and build up positive ‘safety nets’ of relationships (e.g. by
the strengthening of links / improvement of communication between the
various pillars (such as between the police and the courts); encouraging
interaction amongst community actors (such as between children and shop
keepers, families and teachers, academics and civil society organisations);
improving advocacy from this level to that of decision makers in local and
national government).
As previously outlined in Chapter 2, this can be achieved through:
a) Sensitization (working at the level of individual relationships) and
b) Collaboration (the multiplier effect of relationship building).
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THE ROLE OF DIFFERENT ACTORS IN REFORM
This need for collaboration is further emphasized by an overview of the matrix of
recommendations for reform outlined in Chapter 8 which are disaggregated according
to different actors in the system from each of the five pillars:
•
Government
•
Police
•
Lawyers & judiciary
•
Social welfare
•
Probation & correction
•
Community, including NGOs
•
Media
•
Academics
•
UN
•
Donors
9 “National and State governments’
responsibility should be to strengthen family
and community structures and not necessarily
take ‘over the charge’ of looking after children.”
Rita Panicker, Director, Butterflies, Delhi, India in
response to a Consortium for Street Children
questionnaire, January 2001.
10 Teresita Silva, Executive Director, Childhope
Asia Philippines, speaking at the Consortium for
Street Children International Workshop on Street
Children and Juvenile Justice, 14-18 July 2003.
THE IMPORTANCE OF THE COMMUNITY
Furthermore, although every pillar is important, the findings from the CSC project
emphasise the importance of the community above all.9 Without community
strengthening, the priority areas of reform– i.e. prevention, diversion and alternatives to
detention – are impossible to achieve: “It is impossible for civil society (community) to
move towards helping a child without knowledge of the structure of society and the
justice system; community must be an inherent part of focusing on the criminal justice
system.”10 The particular challenges that this raises in relation to street children, due to
their experience of ruptured family relationships and the need to capitalise on their
‘alternative’ support systems such as peer groups, are addressed in Chapter 7.
The examples of relationships shown in the diagram are intended to be illustrative
only and are by no means comprehensive. Situations will obviously vary depending
on national, local and individual circumstances.
5
WHERE CAN IMPROVEMENTS BE
MADE TO TRANSFORM
NEGATIVE / DAMAGING
RELATIONSHIPS INTO POSITIVE /
SUPPORTIVE RELATIONSHIPS?
WHERE ARE STREET CHILDREN
FALLING THROUGH THE GAPS?
HOW CAN CHILDREN BE
PROTECTED FROM DAMAGING
INFLUENCEES (SUCH AS ABUSERS
AND ADULT CRIMINALS)?
TO WHAT EXTENT IS IT POSSIBLE
TO BYPASS SOME OF THE ACTORS
IN THE FORMAL JUSTICE SYSTEM
ALTOGETHER. THROUGH
PREVENTION AND DIVERSION
PROGRAMMES?
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Practical tips
RELATIONSHIP MAPPING EXERCISE
Diagrams such as this can be adapted to reflect local or individual circumstances
and can serve a variety of purposes for use by governments and civil society
organisations. For example they can be used:
To analyse where systems are currently failing / where children are falling
through the net. For example, are social workers talking to the police? Are NGOs
involving the child’s family and peers enough in programmes? Are remand home staff
cooperating with probation officers or is this communication breakdown leading to
delays in processing children’s cases? Are judges providing children with a childfriendly space and opportunity to speak for themselves?
1
As a planning tool to transform negative and neutral relationships into
positive ones and to identify (in consultation with children themselves) which
relationships (i.e. with adult criminals, peer abusers etc.) can and should be cut
out of the child’s experience as much as possible, either through formulating
strategies to limit the frequency or likelihood of contact, or – where contact is
unavoidable – supporting children to develop and strengthen their own coping
strategies in these circumstances. In an ideal world, through programmes that
concentrate on prevention and diversion in the first place (by strengthening these
relationships at family, household and community levels), it is ultimately preferable
that children avoid contact with the formal criminal justice system altogether.
2
As part of individual or group counselling sessions with children
themselves.
If repeated at intervals, the mapping exercise can be used as part of child-centred
‘life planning’ techniques to set targets for, and show progress of, an individual child
in terms of building positive relationships and support networks.
3
The essential starting point for this exercise, for any of the purposes stated
above (analysis, planning or counselling) must, however, be the experiences of
the children themselves, from their own point of view.
This exercise can be demonstrated more visually, either with children or adults in the
following way: individuals choose, or are assigned, role play identities of relevant
actors. They then stand in a circle and connections are made between the various
actors using a ball of string crossing backwards and forwards across the circle. The
relationships can be drawn out by narrating a case study or by having a child
describe a day in their life which points out how they come into contact with others.
This can then form the basis of a discussion about addressing gaps and
strengthening support networks.
Participants from Kenya,
Nicaragua, Nigeria, Pakistan, the
Philippines and Romania take
part in a relationship mapping
exercise based on a case study
of a street child in the
Philippines, as part of the
International Workshop on Street
Children and Juvenile Justice,
London, 4-8 July 2003.
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Chapter summary
• The majority of street children’s experiences in the system are negative –
marked particularly by extensive (and often unjust) periods of detention where
conditions are poor and abuse rampant. Detention isolates children from their
communities and support networks. Furthermore, as can be seen by the
‘revolving door’ analogy, it also does little to break the cycle of street life and
institutionalisation into which street children are trapped.
• One of the key themes of this book is the centrality of relationship building to
challenging the underlying criminalisation and stereotyping of street children
that characterises their current negative treatment on the streets and in
criminal justice systems. This relationship building needs to take place at the
levels of both individuals and institutions. Reform is only possible if it is based
on a holistic overview of the system which engages all of the five pillars.
5
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6
STREET CHILDREN’S EXPERIENCES
IN THE INJUSTICE SYSTEM
Chapter overview
Describes in more detail, based on the project findings and other
sources, the children’s experiences at the following stages of justice
systems. It is divided into sections according to how the children
themselves related their experiences:
•
On the street: police and private security guards: includes positive
experiences, an insight into the police perspective and the potential for
positive collaboration with the police. However, it focuses mainly on
experiences of violence, death squads, sexual abuse, harassment,
bribery, extortion and corruption, arrest, ‘round-ups’ / ‘street cleaning
operations’ interrogation, and lack of accountability and complaint
mechanisms.
•
Detention in police cells, remand homes and other institutions: focuses
on remand / pre / under-trial detention, detention with adults,
conditions and treatment in detention but once again includes
examples of positive experiences as well.
•
Trial / hearing and sentencing - judges and lawyers: outlines positive
and negative experiences.
•
72
Reintegration: outlines positive and negative experiences.
Chapter 6: Street children’s experiences in the injustice system
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1) ON THE STREET:
POLICE AND PRIVATE SECURITY GUARDS
Amongst the children’s recollections of the justice system as part of this project, their
experiences of the police (and in some countries private security guards that are hired
either by local business people or the state to carry out a similar policing role) featured
very prominently in comparison with other aspects of the system such as trial which
were only recollected more vaguely. This indicates the extent to which street
children’s relationships with the police and security guards feature in their
experiences with the justice system. Harassment, threats, insults, exploitation and
physical and sexual abuse may be carried out directly by the police, or by other
members of the public with either active or tacit encouragement of the police. The
police are therefore doubly responsible for human rights violations - as perpetrators
themselves, and for failing to protect children from abuse by others. The police may
also be guilty of using their power to extort sexual favours, money or free child labour
from street children.
Most children reported that policemen are the huge
troublemakers in their lives”; “While staying on the
streets I have known a lot of hardship, but the worst was
when I had to go to sleep on an empty stomach and got
beaten up by the ‘dadas’ (bullies) and policemen. (NEPAL) 1
The most common and pervasive form of abuse street
children experience is by the police. They force them to
clean the stations, they beat them, they take money from
them, and they torture them into confessing to crimes or
to name who committed them. (INDIA) 2
6
They think every child who lives or makes a living
in the streets is a bad child. (PHILIPPINES) 3
There are some good police, but most of them are
bad. They get a kick out of hurting us. (GUATEMALA)4
I came to Jeevanjee Gardens where I was arrested and
taken to Kirigiti Girls’ Approved School where I
was taught good manners. May God bless the police.
(KENYA) 5
1 Rai, A., Ghimire, K.P., Shrestha, P. and Tuladhar,
S., Glue Sniffing Among Street Children in the
Kathmandu Valley, Child Workers in Nepal
Concerned Centre, 2002, p.14 and testimony of a
12-year-old boy in Kathmandu, quoted on p.39.
2 An NGO representative in Madras and Human
Rights Watch, Police Abuse and Killings of Street
Children in India, November 1996, p.10. Likewise,
another NGO representative with more than
twenty-five years of experience with street
children in Bombay told Human Rights Watch that
the police were "the number one problem" street
children face.
3 UP CIDS PST / CSC End of Project Report, 2003.
4 Interview with Dolores, Guatemala City, 6
September 1996, quoted in Human Rights Watch,
Guatemala’s Forgotten Children: Police Violence
and Abuses in Detention, July 1997, p.24.
5 SNV Kenya and GTZ (2002) The Story of
Children Living and Working on the Streets of
Nairobi.
http://www.snvworld.org/kenya/PublicaMain.htm
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Despite the overwhelmingly negative experiences, as part of the project, the children
were also encouraged to relate their positive experiences with the police and these
comments are included at the end of this section with a commentary on, and examples
of, the importance of relationship building with the police.
1. a) VIOLENCE
By far the most common experiences of street children with the police are
overwhelmingly negative, characterized by psychological, physical and sexual
violence and arbitrary abuse of power, whether on the streets in the context of
harassment, or in police stations following arrest.
When a girl is almost grown-up, she gets molested
or raped in exchange for her freedom. (PHILIPPINES)6
NIGERIA: drama depicting police
violence against street children,
presented as part of the National
Workshop on Street Children and
Juvenile Justice organised by
Human Development Initiatives
and Consortium for Street
Children, 2-4 June 2003.
I want to be a policeman so I can beat others just
as they beat us. (ROMANIA) 7
Some police use beatings in a ‘well-meaning’ manner –
especially with street children high on glue – to try
and teach them the harm of such behaviour. (NICARAGUA)8
Factors contributing to this treatment by the police and security guards may
include:
6 Ryan, aged 16, cited in UP CIDS PST / CSC
End of Project Report, 2003.
7 Street boy quoted in Alexandrescu, G.,
Romania – Working Street Children in
Bucharest: A Rapid Assessment, ILO/IPEC:
Geneva, 2002.
8 Casa Alianza Nicaragua and Consortium for
9 Hazizaj, A. and Barkley, S.T., Awaiting Trial: A
(CRCA), May 2000, p.71.
Children, 1997, pp.34-35.
74
•
Lack of education and training;
•
Violence and abuse as part of their own upbringing;
•
Lack of non-violent conflict resolution and communication skills;
•
Lack of awareness of their own rights, let alone those of other people –least
of all children;
•
Recruitment procedures that have no screening in place to deter violent
applicants or those looking to abuse their power;
•
Lack of resources;
•
Frustration with the perceived failure of the judicial system to
appropriately punish or otherwise ‘straighten out’ street children;
•
Impunity due to lack of developed monitoring, accountability and
complaints procedures;
•
A ‘threat’ mentality / perceived or actual personal danger to the police
themselves in some cases of hostile societies;
•
Links with the military – either institutionally, historically, or in terms of
attitude. For example: in Albania, the police are described as “in general very
offensive and behave as members of a militia”;9 in Guatemala, the abuses of
power and impunity with which private security forces operate is explained in
part by the fact “many of the private agencies are owned by powerful former
military officers, who maintain their ties to government security forces and can
be dangerous to cross.” These firms have their own weapons, are described as
‘notoriously unsupervised’, and are subject to inadequate training, slack
recruitment screening, corruption.10
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1.b) DEATH SQUADS
99.9% of policemen think that the street child is an
unsolvable problem. He cannot be helped, and so
he must die. It is a way of resolving the problem. (BRAZIL)11
According to a government official “the
Guatemalan society rejects these kids…they
would even like to see them dead..” (GUATEMALA) 12
As outlined in Chapter 2, we saw how criminalisation, stereotyping and
dehumanisation at collective and individual levels can result in an array of human
rights violations. Death squads are at the extreme end of that spectrum. It is important
to point out that the state bears responsibility for these actions whether or not they are
committed by representatives of the state. Where the perpetrators are state
representatives (i.e. uniformed police) –the government’s responsibility is direct.
Where the perpetrators are non-state actors (i.e. vigilantes, private security firms, offduty police or street gangs), the government is still responsible on the grounds that it
has ‘failed to protect’ its citizens.
Case study
THE CANDELÁRIA MASSACRE, 25 JULY 1993, RIO DE JANEIRO, BRAZIL
Perhaps the most famous case of a death squad killing of street children, the events
at Candelária at 1am on 25 July 1993, put Brazil’s street children well and truly on
the international map. Fifty homeless children and young people were sleeping on
the grounds of the Candelária cathedral in downtown Rio de Janeiro, when a group
of gunmen drove past, shooting. Four died instantly, another was killed whilst
running away, two more were abducted, beaten and shot and an eighth died several
days later. Eight others were shot but survived. The shootings were allegedly
provoked by an incident earlier that day where some children had reportedly thrown
stones at a military police vehicle after one youth had been detained for drug use.
On 30 April 1996, one of the police officers was sentenced to 309 years in prison
(six counts of murder, five counts of attempted murder, and several counts of
grievous bodily harm).13
Although the Candelária case has become a landmark in the fight against impunity
in Brazil, resulting so far in the rare conviction of two military policemen, Amnesty
International is concerned that they also expose serious flaws in the manner of
investigating and prosecuting human rights violations. The organization is also
alarmed that, despite the public outcry over the massacres, politicians in Rio de
Janeiro have repeatedly made public statements in 2003 either in explicit support of
police killings, or citing high levels of police killings as a necessary and unavoidable
product of crime control. Such public statements seem to have been taken by police
in Rio as a green light to kill in 2003, as the first four months of the year saw record
numbers of deaths at police hands.14
The interplay of fear, public opinion and lack of understanding on the criminalisation
process is clear. It has been stated that there is considerable public support for the
death squads as the result of perceptions that street children are dangerous
criminals.15
6
11 Interview with military policeman ‘M’, in The
Silent War: Killings of street children by
organised groups in Rio de Janeiro and the
Baixada Fluminense - a report by Jubilee
Campaign, August 1998, p.17.
12 Interview with Victoria Monzón, Director of
the Guatemalan government agency charged
with administering juvenile detention and
protection services (Tratamiento y Orientación
de Menores), 4 September 1996, quoted in
1997, pp.10-11.
14 Amnesty International, ‘Rio de Janeiro 2003:
Candelária and Vigário Geral 10 Years On,’
August 2003,
15 Inciardi, J.A. and Surratt, H.L., p.10.
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THE STORY OF SANDRO DO NASCIMENTO: ‘BUS 174’
The consequences of this criminalisation process, not only for street children
themselves but also for society, are made very clear through subsequent events that
took place in Rio de Janeiro on 12 June 2000 when Sandro do Nascimento, one of
the street children survivors of the Candelária massacre, hijacked a public bus at
gunpoint. The event was broadcast live on Brazilian television for four and a half
hours and the news footage has since been supplemented with interviews and
turned into a powerful documentary film entitled ‘Bus 174’.
The film outlines events leading up to the hijacking – how Sandro left home at the
age of nine, having witnessed his mother being stabbed to death in front of him; his
life on the streets, including the Candelária massacre; Sandro’s horrific experiences
in the criminal justice system which left him with nothing to lose - “He will not turn
himself in because he doesn't want to go back to prison. What causes violence is to
toss a kid that stole a wallet next to the drug dealer that kills.” 16 The bus hijacking
ended with a female hostage being shot (by the poorly trained police, not by
Sandro), and with Sandro being bundled into a police van from which he does not
come out alive. Sandro’s story, as uncovered through the immense media coverage
of the event, and the resulting film, along with his connection to the Candelária
massacre, have come to symbolize levels of violence in Rio as well as Brazil’s
mishandling of street children and the appalling treatment meted out to young
people in the criminal justice system.
Case study
THE JAVED IQBAL MURDERS - PAKISTAN 17
I am Javed Iqbal, killer of 100 children... I hate this world,
I am not ashamed of my action and I am ready to
die. I have no regrets. I killed 100 children.
These are the last words of the man who, on 16 March 2000, was found guilty of
brutally murdering 100 boys living on the streets of Lahore. By first drugging and
abusing them, Iqbal then strangled each boy, cut them into pieces and dissolved
them in a vat of acid, keeping only their shoes, clothes and sometimes a photo he
had taken of them before they died.
At his trial, Iqbal made a point of claiming that as no-one ever notices when a street
child disappears: he could have gone on to kill 500 before anyone took action
instead of turning himself in in December 1999 once his target of 100 boys had been
reached. It took two weeks before police investigated Iqbal's house after receiving
information about the crimes committed there: "The police never took it seriously.
Police thought it was a joke and that he was a mental patient. He told the police 'I
have killed these children,' and the police said, 'Come back in the morning.' "
In late December, after the extent of Iqbal's crimes was known, the Punjab police
chief distributed a memo to officers throughout the province saying "reports of
missing children should not now be taken lightly."
16 José Padilha, Director of Bus 174, in ‘Ônibus
174 dissertates against Brazilian destitution and
the omission of the State’, Friday, December
6th, 2002, InvestNews - Gazeta Mercantil, at
http://www.bus174.com/articles.htm.
The revelation of Iqbal's horrific crimes, committed with two teen accomplices,
woke up human rights groups in Pakistan to the plight of street children in Pakistan.
It "brought home with a bang how limited society's safeguards for the children were
and with what gruesome consequences," the Human Rights Commission of Pakistan
wrote in its annual report. One 9-year-old street boy who used to live in the same
alley as Iqbal confirmed how the terrible incident had affected him: "In the dark, I
worry about bad spirits from there," he said. "I am afraid they will come and eat
me."
17 Adapted from Gannon, K. ‘Few Look out for
Street Children’, Associated Press, 20 April
2000.
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Iqbal’s murders also exposed a number of unpleasant truths about the frailty of the
family and its crumbling support system in the face of extreme poverty. All the
victims had come from poor families, and had left home either to look for work or to
escape the harshness of their existence at home. Although it was suggested that
parents of 17 of the victims had reported their missing children to the police, only
one report had been registered. A possible reason for this is the desire to make the
crime rate look low, and police performance better. However, in this case, the police
reported that they had not any complaints regarding these missing children.
Case study
ONGOING MURDERS OF STREET CHILDREN AND YOUNG PEOPLE
IN CENTRAL AMERICA
According to the NGO Casa Alianza, in March 2004 a total of 55 children and young
people under the age of 23 were murdered in Guatemala in the space of 31 days. In
2003, Casa Alianza documented a total of 747 extra-judicial executions in Guatemala
- an average of 60 murders each month. Meanwhile, the agency's Legal Aid
Programme in Honduras registered 557 murders of children and youth under the age
of 23 throughout the country. According to Casa Alianza, in spite of lack of evidence,
the Presidents of Guatemala, Honduras and El Salvador all blame the murders on
juvenile gangs, an argument which has been used to justify violent police repression
against young people.
1.c) SEXUAL ABUSE
Sexual abuse of street boys and girls – both on the streets and in detention - features
strongly in the repertoire of abuse of police power, ranging from use of derogatory
language to rape. Sexual activities are often forced through violence or coerced
through threats and exploitation - for example in exchange for freedom from arrest or
detention, or for police ‘protection’ from others. Once again this represents the limited
or non-choices which street children face on a daily basis.
Girls are often asked for sexual favours on the pretext
that they would be released. In most instances, release
does not take place even after giving in to the officer’s
demand”20; “The police are always calling us names, threatening
us, saying we’re whores, trash, homeless, and beating us. Sexual
abuse happens too. It happened to me once, here in Jeevanji
[public park]. Four policemen came and arrested me near City
Market. They started taking me to the Central Police Station, and
brought me here to the park. One of them hit me and I fell down,
and he came down on top of me. Another held me down while
the policeman raped me. After he raped me, they walked
me over to Central Police Station, and just let me go.
(KENYA) 21
6
18 Adapted from Casa Alianza, cited in
CRINMAIL 571 (Child Rights Information
Network), 4 May 2004. See also
www.casa-alianza.org.
20 Street boy’s testimony as part of the
National Workshop on Street Children and
Juvenile Justice, Nairobi, March 2003.
21 Human Rights Watch interview with Pamela,
aged 18, Nairobi, September 24, 1996, quoted in
Human Rights Watch, Juvenile Injustice: Police
Abuse and Detention of Street Children in
Kenya, June 1997, p.27.
77
2/6/04
KENYA: Group discussion
amongst young people as part of
the Consultative Street Children
Workshop on Juvenile Justice,
Nairobi, 22 February 2003,
organised by the Undugu Society
of Kenya as part of the CSC
Street Children and Juvenile
Justice Project.
12:49 pm
Page 78
The barangay [local government] policeman Donato, also the
barangay captain, arrested me. They brought us near the Day
Care Centre. There, they hit us with the butt of their guns. They
hit me with a dustpan. We got caught again in the Sandawa
area. A policeman named Lamping hit me with a piece of wood.
When they were going to set us free, they hit us again. We were
in jail for a night. They told us that we could have our freedom if
we let them place their fingers inside our vaginas or let them
fondle our breasts. (PHILIPPINES) 19
Sexual abuse affects both boys and girls. For example, ‘most’ of the girls who took part
in the project in the Philippines complained of being sexually abused by policemen
and the boys also reported being sodomized or forced to perform sexual acts with other
children.22 However, despite the much larger number of boys in the criminal justice
system, the plight of girls tends to attract more attention due to their minority status
and perceived additional vulnerability. For example, in Egypt, Human Rights Watch
reports that “both girls and boys are at risk for sexual abuse and violence in police
custody, but girls and women living on the street face additional pressures to enter
into sexual relationships with police even when not in custody. Several girls and
women we interviewed reported that they had entered into relationships with police
guarding parks and other public places, because they depended on the police to
protect them from sexual violence by other men and boys.”23 Further examples of
sexual abuse are included in the section below on street children’s experiences in
detention.
1.d) HARASSMENT
Harassment – with or without physical violence - interferes with children’s survival
strategies, resulting in loss of earnings and peace of mind. It may also result in other
indirect effects such as causing them to be chased from areas of safety, making them
more vulnerable to abuse at the hands of others. For example, in Bulgaria:
19 16-year-old girl, cited in UP CIDS PST,
[t]he police chase us away from the underpass and from
the station, the areas where the police stay, and
make us stay outside where the skinheads can get us.
(BULGARIA) 24
22 UP CIDS PST / CSC, End of Project Report,
2003.
23 Human Rights Watch, Charged with Being
Need of Protection, February 2003, p.19.
Physical and sexual harassment of street
children by the police in Bulgaria, both on the
street and in police lock-ups was also cited by
Human Rights Watch in their 1996 report,
Children of Bulgaria: Police Violence and
Arbitrary Confinement, September 1996, p.3.
24 Human Rights Watch, Children of Bulgaria,
1996, p.33. See also p.15.
25 Human Rights Watch interview with
Wycliffe, Kisumu, September 22, 1996, quoted
in Human Rights Watch, Juvenile Injustice,
1997, p.21.
78
We usually carry sacks (for garbage picking). The
[Kisumu] police beat us up and put us in our sacks. Even
if we’re just walking around, doing nothing. If you don’t give
them money, they take you to the station. Usually they ask us
questions about thefts that have happened. They search us. If we
have money, they take it. If we don’t have money, we
have to talk to them really nicely, or else they’ll take you
to the police station. (KENYA) 25
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The private guards from the bank also come and harass
us all the time. They pull their pistols out and make us
come out of the women’s restroom [at the park]. They push us
around. They just do it to give us a hard time, to be
powerful over us; we’re not bothering them at all.
(GUATEMALA) 26
1.e) BRIBERY, EXTORTION AND CORRUPTION
In addition to extortion of sexual favours, as indicated previously, low levels of pay for
the police, combined with lack of accountability mechanisms, foster an environment
where financial extortion, bribery and corruption are widespread. Powerless street
children are especially vulnerable to this kind of abuse, either on the streets or in
police cells as the following examples show.
They accuse us of earning our money through illegal sex
activities, and demand their share”; “They take our
personal things and call us drug addicts and thieves.
(PAKISTAN) 27
Police officers have a tendency of taking any valuables
they find with the children; 28
I’ve never bribed the police. That’s why I’ve been to jail
ten times. (KENYA) 29
NIGERIA: drama depicting police
harassment of street children,
presented as part of the National
Workshop on Street Children and
Juvenile Justice organised by
Human Development Initiatives
and Consortium for Street
Children, 2-4 June 2003.”
6
It happens all the time, police stealing jewellery and
money from us. You practically can’t wear a chain or
anything – they’ll come up and hit you and take it away. They
don’t like to see us wearing jewellery. It makes them jealous.30
“How can this be, that the agents of justice ask us for money?
When we’re not doing anything to them? And to think, some poor
kids are hauled away and beaten up, just because they
don’t have any money to give the police. (GUATEMALA) 31
Street children as part of the project in Pakistan reported that policemen regularly
harass them for ‘protection’ money – i.e. a bribe that would allow the child in question
to continue their survival strategies without interference. Some demand a share of the
profits made by child vendors or extort an illegal ‘fee’ before allowing them to tout for
business in their areas of patrol; others simply wait until the child has made a sale, and
then snatch the money on the grounds that the child is ‘a drug addict’ and ‘involved in
crime’. Many children are arrested on false charges and then offered release on
payment of a fine. Street children also report that police use false arrests to get
children to do odd jobs for them. This usually involves the child being detained for a
26 Interview with 19-year-old Maritza,
Children, 1997, p.34. See also interview with Dr.
René Zamora, Guatemala City, 20 September
1996, p.14, according to whom, at the time of
the interview, beatings were coming at least as
often at the hands of private police as from the
National Police: “Those guys, yes, they are very
aggressive with the kids.”
27 Child participants quoted in AMAL Human
Development Network and Consortium for
Justice in Pakistan, February 2004.
28 Child participant at the National Workshop
Kenya, March 2003.
29 Human Rights Watch interview with Victoria,
Nairobi, October 2, 1996, quoted in Human
Rights Watch, Juvenile Injustice, 1997, p.26.
30 Interview with Mauricio, Guatemala City, 2
Watch, Guatemala’s Forgotten Children,1997,
pp.20-21.
31 Interview with 16-year-old Juan Alexander,
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few hours at the police station, during which time they are forced to clean cells and
toilets before being thrown back onto the streets without charge. Unsurprisingly,
parents of these children are rarely informed of the detention and no ‘First
Information Report’ is written.32
When discussing their dislikes of the police, street children in Nigeria particularly
cited that they feel the police are corrupt, collect bribes, and “cooperate with armed
robbers”. As with the children in Pakistan, who were detained to perform tasks for the
police, those in Lagos also depicted being detained behind police counters and sent on
errands to buy things such as cigarettes.
These types of experience are also common in other countries, for example girls
involved in street prostitution in Mexico reportedly pay the police extortion and
protection money.33 In Bulgaria:
The police put me in a cell by myself. I stayed there for
one night. They didn’t give me any food, but they gave me
water. They didn’t let me out of the cell so I went to the
bathroom on the mattress that I slept on. The next morning, a
policeman came and asked me if I had any money. He told me if
I didn’t give him my money, he would put me in a cell
with adults. I was afraid so I gave him my money.
(BULGARIA) 34
The same report also gives examples of clothes of detainees reportedly being returned
the following day with the pockets emptied of anything valuable. In Egypt, both girls
and boys told Human Rights Watch that police frequently extorted money in exchange
for avoiding arrest, securing early release from detention, or gaining access to food
during detention. Police officers told Human Rights Watch that they believed street
children earned significant sums of money through begging or selling small items, a
factor that may have contributed to police targeting such children for extortion during
arrest and detention.35
1.f) ARREST
32 AMAL / CSC, Street Children and Juvenile
Justice in Pakistan, 2004.
33 Local merchant quoted in Human Rights
Commission of the Federal District and UNICEF
(eds), On the Other Side of the Street: Juvenile
Prostitution in La Merced Neighbourhood,
Mexico City, August 1996, p.68.
34 9-year-old girl from Sofia, Human Rights
Watch, Children of Bulgaria, 1996, p.29-30.
As part of the project in the Philippines, some of the children indicated that good
practice guidelines had been followed and that, for example, their parents were called
during interview, they were given food and advice by the police, they were referred to
social workers and centres and they were allowed to go home while their cases were
in progress.36 Likewise in Nigeria, children reported that some police helped to settle
disputes and care for children.37
However, examples of negative experiences of the police during arrest unfortunately
far outweigh the positive ones, as seen in the following examples.
Children,2003, p.18.
36 UP CIDS PST / CSC End of Project Report,
2003.
37 Human Development Initiatives and
and Juvenile Justice in Nigeria, February 2004.
I don’t like living in the streets anymore, the police take
you, they won’t even let you work at the intersections or
in the buses. (ROMANIA) 38
38 Street boy quoted in Alexandrescu, G., 2002.
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Policemen often arrest us for sleeping under a bridge;
“They threatened us that we can never sell our wares in
the streets again, and in so doing we can not earn money that
we need for our education, so we should not protest or escape
from being arrested;” “Nobody explained our rights as children
and they did not even bother to call the social workers;” “They
did not allow me to talk, or ask about my situation nor explain
my side [when they arrested me];” “They said that if I
tried to escape, they will shoot me. (PHILIPPINES) 39
We arrest kids in parks who look like they are homeless.
We arrest kids selling tissues in the street. These kids
become known to us, so it isn’t hard.” ; “We conduct arrest
campaigns to demonstrate the government’s presence. Because
if we didn’t have arrest campaigns then quickly the streets
would fill up with kids selling tissues and wiping cars
and begging. (EGYPT) 41
The first time [I was sent back to my home governorate]
there were fifty or sixty people in the transport vehicle.
Adults and kids. One adult told me I was a ‘bastard.’ I had
handcuffs on and the adults did too. I couldn’t breathe. I thought I
was going to die. I was screaming, but no one did anything. They
didn’t open the door until we arrived. There were small
kids crying, but no one did anything for them. (EGYPT)42
Reasons for arrest: In Nicaragua, over 20% of the children interviewed for the Street
Children and Juvenile Justice Project country report testified that their arresting
officers had failed to produce a warrant, court order or give any reason for their action
at the time. Of the 44 files reviewed for this project, only 11 were found to have legal
orders (warrants), suggesting the remaining 33 were all crimes where the child
exhibited ‘flagrant guilt’. Most appear to be picked up on charges of ‘habitual vagrancy’,
‘disrespect to authorities’ and ‘alteration of public order’ such as incidents involving
drugs and fighting.43
Contrary to international human rights standards, legislation criminalizing ‘truancy’,
‘running away’ and ‘vagrancy’ may also be in place – to which street children are
especially vulnerable. In these cases there is an obvious case for legislative reform,
accompanied by sensitization of the police, to combat the attitudes such as those
exhibited by this police officer in Egypt: “[Sometimes] we arrest kids walking down the
street during school hours with their school books, but I don’t have enough officers to make
as many of these arrests as I would like. I am asking for more officers, because in the future
we want to conduct campaigns to search for and arrest truants.”44
6
39 Children from Manila, Luzon and Visayas,
Philippines, quoted in UP CIDS PST / CSC End of
Project Report, 2003.
40 Brigadier Yasir Abu Shahdi, director of the
Cairo Governorate Police Directorate’s al
Azbekiya juvenile lockup, quoted in Human
Rights Watch, Charged With Being Children,
2003, p.1.
41 Police Officer, Bulaq al Dakrur Police Station,
July 24, 2002, quoted in ibid, p.38.
42 Yahiya H., aged 11, Cairo, Egypt, July 27,
2002, quoted in ibid, p.19.
43 CAN / CSC, Street Children and Juvenile
44 Brigadier Yasir Abu Shahdi, director of the
Cairo Governorate Police Directorate’s al
Azbekiya juvenile lockup, quoted in Human
Rights Watch, Charged With Being Children,
2003, p.1.
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Preventive arrest is subject to misuse which particularly discriminates against street
children.45 A report from Bangladesh likewise reveals the injustice and abuse of socalled ‘protective’ or ‘safe custody’ provisions which have the effect of criminalizing
children in need of care and protection: “Hungry children were picked up by the police
with the temptation of food (which was not at all forthcoming in the detention cells). There
has been at least one case where the rape victim herself was detained while the assailant
(incidentally a policeman himself) was left untouched.” 46
According to street children workshop participants in Kenya, reasons why street children
are arrested by the police include loitering, carrying illegal weapons e.g. a knife, being
caught smoking bhang (marijuana), refusing to give in to the sexual demands of officers,
being (or being perceived to be) rude to or disrespecting police officers on duty, and to
promote tourism, “since street children are seen as a nuisance to visitors.”47
The following statements from street children at the national workshop in Kenya
reveal the potential consequences of arbitrary arrest not only for the children involved
but also for society as a whole – i.e. the likelihood of encouraging criminality among
street children if there is high chance of them being arrested whether innocent or not.
I have a scar from when I was hit by a police rungu
[wooden club] when I was trying to escape from arrest.
They give me chase and I went under a car so from there they
were unable to get me because I was so small. Then they went
away to call the others to surround the car so I escaped.” “Next
time you might as well do something in that case… so
[you] become a criminal when you weren’t before. (KENYA)48
The manner of arrest may also violate human rights standards, for example use of
force, unnecessary use of handcuffs or restraints, degrading treatment etc. In
Nicaragua, just under half of those being detained reported being beaten by police at
the moment of being captured, usually with a combination of fists, truncheons and
being threatened with guns.49
45 For example, in Eygpt, the Code of Criminal
Procedures [articles 134, 142] allows for
preventive custody in a number of
circumstances, including cases where the
suspect is accused of a misdemeanour
punishable by imprisonment and “does not
have a known regular place of residence in
Egypt,” which would apply to many cases
involving children living on the street. Ibid,
footnote, p.16.
46 Zaman Khan, S., Herds and Shepherds: The
Issue of Safe Custody of Children in
Bangladesh, Bangladesh Legal Aid and Services
Trust (BLAST) and Save the Children UK, June
2000, p.18.
47 Undugu Society of Kenya, Report on Street
Children Conference on Juvenile Justice – Haki
Kwa Watoto Wote, Kenya, 2003.
48 Child participants in the National Workshop
Kenya, 6-7 March 2003.
49 CAN /CSC, Street Children and Juvenile
Justice in Nicaragua, 2004.
According to the findings of a 1996 research conducted on the rights of the child in
Nigeria, 40% of children in criminal custody said that their arrest involved the use or
threat of physical force, 34% of a relevant sample size of 147 respondents stated that
they had done nothing to warrant the use of force by the police, and 35.4% felt that
they had been assaulted because they questioned their arrest or refused to make a
statement. One-quarter of the respondents, however, admitted to resisting arrest. In
further violation of legislative provisions, 35.8% of the respondents were handcuffed
or otherwise restrained at the time of arrest.50 The use of handcuffs was also
highlighted by children themselves who took part in the Street Children and Juvenile
Justice Project in Lagos.51
In Kenya, the children described being falsely accused and being transported to the police
cell either in a lorry or car-boot. Also, “once they have arrested the children, police
officers have a tendency of walking around with the children for long hours before
reaching [the] police station”.52 In Egypt, children arrested for being “vulnerable to
delinquency” are commonly bound with ropes and forced to walk as a group to the station.
50 I.E. Okagbue, The Treatment of Juvenile
Offenders and the Rights of the Child in I.A.
Ayua and I.E. Okagbue, The Rights of the Child
in Nigeria (NIALS, Lagos 1996), p.254.
52 USK, Report on Street Children Conference
on Juvenile Justice, 2003.
Five girls were arrested with me. They tied us with rope
and made us walk to the station. There were four
police. They didn’t say anything, just ‘Begging. (EGYPT) 53
53 Widad T.’s description of her tenth arrest, in
early July 2002, quoted in Human Rights Watch,
Charged With Being Children, 2003, pp.21-22.
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Failure to inform families / guardians: Once arrested, family members or
guardians are rarely contacted by the police. For example in Nicaragua, 47% of
children interviewed suggested that their families had found out about their arrest
from sources other than the police (e.g. friends, onlookers) and 18% had no idea
whether their family knew about their arrest or not. The children also said that the
police never contacted NGOs for assistance in detaining children, despite this being a
potentially valuable diversionary measure to reduce the child’s contact with the more
advanced stages of the justice system.54
Humiliation: In Nicaragua, one boy described how he was stripped naked by police,
taunted and left in a cell. This humiliation continued when his girlfriend came to the
station to visit him, whereupon four officers ridiculed and made fun of him.55 Children
in the Philippines also report being humiliated, for example by being forced to eat
their solvent or glue, or having it poured on their hair. Amongst the list of practices
that street children in Nigeria complained of in relation to the police was the
“enforced stripping of clothes even for female children.”56
Street children in Kenya complained of the use of abusive language by the police – for
example calling the children prostitutes or children of prostitutes.57 Likewise, in
Egypt, Human Rights Watch reports that the police routinely use obscene and
degrading language to humiliate and intimidate children during arrests, especially
using terms such as “bastards,” “whores,” children of “whores” or dogs, or making
references to children’s mothers’ sexual organs – all of which are pointed out as being
extremely offensive attacks on family and personal honour in Egyptian society.
According to one 17-year-old, “The government curses us. They curse us badly - curses of
religion, of mothers, of fathers”.58 The impact of such humiliation and degradation should
not be underestimated or in any way seen as less important than the physical abuse
experienced. It emphasizes once again the pervasive culture of criminalisation,
stereotyping and dehumanization that prevails in the criminal justice system in
relation to street children.
1.g) ‘ROUNDUPS’ / ‘STREET CLEANING’ OPERATIONS
55 Notes from CSC mission to Nicaragua, 26
April 2002.
One day we went to the Shishu Park (Children’s Park)
along with others. Suddenly the police picked us up
without explaining anything. When we asked them about the
reason, they beat us up. We were afraid to ask again as
the police had batons in their hand. (BANGLADESH) 59
In addition to the ‘regular’ arrest and detention of street children on an ad hoc basis,
police departments often conduct more extensive and systematic roundups. Common
reasons behind the timing of such operations include:
•
•
•
•
•
•
‘Cleaning’ the streets prior to the arrival of visiting dignitaries to the city,
international conferences or similar events;60
To coincide with the tourist season or the promotion of campaigns to encourage
tourism;
Preceding, or immediately following, local or general elections so that politicians
are ‘seen to be doing something’ about the street children ‘problem’, revealing
once again the influence of public opinion (see for example the Kenya case study
below);
As periodic ‘new’ initiatives, often prompted by the arrival of new personnel
trying to ‘make their mark’ in relevant government departments;
In order to use the children as scapegoats following high profile crimes in relation
to which the public – and media – demand action;61
In response to residents’ complaints of an increase in crime in a particular area.62
59 Girl, aged 14, quoted in Zaman Khan, S.,
60 E.g. in Bangladesh “the police almost
religiously pick up all street urchins who they
can lay their hands on prior to every general
strike or ‘hartals’. Although the children are
released soon after the strikes end (generally
after sunset) in the last two decades, this
country has seen the evolution of general
strikes which continue for two days or more.
Police tend to point out that many petty
violences during the strike hours are
undertaken by these urchins and they are prone
to join political agitators more for the exchange
of a small amount of money. But the fact
remains that once picked up for such reasons,
the children have to remain in police cells for
forty-eight hours and at times more.” Ibid,
pp.17-18.
61 E.g. in Bulgaria, police also conduct
roundups of street children when a crime has
been committed. The roundups are conducted
with apparently little regard as to whether the
children are likely to have actually committed
the offence. In addition, children are rounded up
from the streets for identification checks.
‘Sometimes there are preventive roundups of
street kids. New kids are coming all the time,
and there is no way for us to keep track of
them. The purpose is preventive, so we can
identify the kids and inform their parents of
their whereabouts and also find out who these
kids are.’ Human Rights Watch, Children of
Bulgaria, 1996, p.24.
62 “With pressure on the police to act, street
children become immediate easy targets of a
non-performing law enforcement system.” HDI /
CSC, Street Children and Juvenile Justice in
Lagos State, February 2004.
83
6
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Street children in Kenya who took part in the Street Children and Juvenile Justice Project
pointed to the city askaris (Kiswahili term for ‘guard’ or ‘soldier’; general name used by
street children to refer to police) as the group that most frequently harass them, but they
were also able to recall numerous incidences where personnel from the other forces had
worked together on ‘street sweeps’. These apparently arbitrary and often spontaneous
operations are reported to take place under cover of darkness, when there is less risk of
public censure from passers-by or onlookers. Other sweeps are more carefully timed to
coincide with the visit of a dignitary, an international conference or a holiday season in
an effort to conceal the problem. According to the Assistant Commissioner of Police in
1996, these sweeps are conducted in the children’s best interests – “to sort out the children,
and feed them, and send them back to their families”.63 Yet from the testimonies of children
at the national workshops, street sweeps usually involve beatings, requests for bribes and
frequent detentions at police stations for those who refuse.
Despite public and media protestations that round-ups are for the benefit of the children
involved, especially in the case of systematic, as opposed to random, campaigns,
roundups are usually undertaken in the context of the criminal justice system, rather
than the social welfare system: the children are picked up by the police and held either
in police cells or remand homes, or in separate facilities designated for particular ‘street
cleaning’ campaigns.
Roundups are not only in violation of street children’s fundamental rights, but that
they are also ineffective, costly, short-term, unsustainable, often poorly thought
out, and ultimately counterproductive. Without the provision of a comprehensive
and holistic range of child-friendly services to genuinely expand the life choices
available to street children, based on their specific needs and circumstances as
identified by the children themselves, removing them from the streets – especially
against their will – will achieve nothing. Experience shows that they will merely
return to the streets at the first possible opportunity, most likely bearing an even
greater grudge against a society which refuses to listen to their views and treat
them with the dignity and respect they deserve as individual human beings.
This is borne out by the following case studies.
Case study
MULTIPLE HUMAN RIGHTS VIOLATIONS, NEPAL 64
On 27 June 1997, the local police arrested 20 children, aged between 10 and 15, who
were all living and working on the street in Kathmandu, Nepal. They were arrested
while working at the airport as freelance porters, where they reported being frequently
harassed and abused by the police unless they paid bribes to the police. The children
were not aware of the reasons leading to this arrest, nor did they know the crime they
had committed. According to both the police and district administration, all these
children were arrested because they were considered to be a ‘public nuisance’ under
the Public Nuisance Act of 1990 (not taking into account the 1992 Children’s Act), an
‘offence’ warranting a minimum of 4,000 rupees as bail or six months in prison.
According to the District Police office, the children were arrested under the ‘Clean the
Street Operation’ - linked to the ‘Visit Nepal 1998’ initiative of the Ministry of Tourism
(denied by the Ministry).
63 Interview with Assistant Commissioner of
Police conducted by Human Rights Watch and
quoted in Human Rights Watch, Juvenile
Injustice, 1997, p.38.
64 Adapted from Singh, I. L., Street Children
and Juvenile Justice in Nepal: A Case Study,
presented to ‘Children Involved in Juvenile
Justice Systems’, Eighth Innocenti Global
Seminar, 12-22 October 1997, Florence, Italy.
84
All the children were kept in police custody for a total of six days before being
transferred to the Central Jail. The police did not deny that the children were used to
clean the toilet while they were detained in their custody. The children also reported
that during this time they were threatened and tortured, were not given enough food,
had to sleep on the floor in a small room and the police forced them to claim they
were older than they actually were so that they would not be treated as children but
adults. They also complained of being taken out twice with handcuffs / iron chains
around their hands to visit the office of the Chief District Officer, Kathmandu. All of the
children had migrated from rural areas and the majority did not have contact with
their parents. Only three children who had their parents / guardians in Kathmandu
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were able to pay the penalty and were therefore released before the others were
transferred to prison along with adult criminals.
The Chief District Officer, also the Chairperson of the district Child Welfare Board
mandated to protect children in the district, did not review the case when it was
presented to him by the police and later admitted that he had no knowledge of the
Children’s Act. He took the decision to keep the children behind bars without
referring the case to court. Following lobbying by NGOs and child rights activists,
nine of the children were released from the Central Jail on 12 August 1997 after
approximately two months, without having to pay the fine, and went into the care of
one of the NGOs concerned. The remaining 8 children were not released on the
grounds that they were alleged to be over the age of 16 and therefore no longer
‘juveniles’. In the Central Jail, the children had to work for the older inmates,
including cleaning the toilets, although they also claimed to prefer the jail to the
police custody because at least they were given food on time, sleeping
arrangements were more comfortable, and they were allowed to watch TV and play
with fellow prisoners (although they were mixed with adult prisoners). There is no
provision to compensate the children, nor could they take any action against the
government. “The arrested children were not criminals but just happened to be
street children.”
Case study
RECRUITMENT INTO THE NATIONAL YOUTH SERVICE, KENYA 65
The National Youth Service (NYS) was created by an Act of Parliament in 1964 at the
insistence of the youth wings of the political parties which had been engaged in the
struggle for independence. It is officially a voluntary and non-remunerated
programme, designed to reorient and assimilate militant youth, relieve youth
unemployment, create a pool of trained and disciplined young people to support the
army and police force, undertake national development projects and create national
cohesion.66 Service opportunities are usually advertised in the daily newspapers
where college and university students often apply, but since April 2003,
approximately 800 street children from Nairobi and Mombasa have been actively
recruited into the NYS to become “useful citizens, like other Kenyans.” 67
6
It is not yet clear whether this massive induction – drawn predominantly from
rehabilitation centres – was entirely voluntary or not, and little is known about the
procedure itself other than that the children are ‘recommended by the heads of
rehabilitation institutions’. Once recruited, these children then undergo 6 months of
paramilitary training at various NYS training schools, of which there are 18 across
the country. Although the NYS officially recruits unmarried men and women between
the ages of 18 and 22, the age and gender of this new batch was still unavailable at
the time of writing. However, the government has been quick to assert their
intentions of extending the recruitment from urban centres to grass-roots level
countrywide.68 This is despite news reports claiming that the first batch of street
children graduates from the NYC have simply returned to the streets ‘more ruthless
and hardened.’ 69
As party to the Optional Protocol to the CRC on the involvement of children in armed
conflicts, Kenya is legally bound not to recruit children under the age of eighteen
into its armed forces, either by force, or voluntarily. The protocol also prohibits all
recruitment of children under the age of eighteen by non-governmental armed
groups. The prohibitions of the protocol do not apply to schools operated by the
government where students are not members of the armed forces. However, the link
between the YLS and the Kenyan army and the reported active recruitment of
children into the programme raises concerns about Kenya's compliance with both
its own laws and the provisions of the protocol.
65 Consortium for Street Children, Street
Children and Juvenile Justice in Kenya,
February 2004.
66 Taken from Khasiani, S.A., Kenya Country
Report prepared for the Worldwide Workshop on
Youth Involvement as a Strategy for Social,
Economic and Democratic Development,
organized by the Ford Foundation and held in
Costa Rica, 2000.
67 Muigai, S. (2003) ‘National Youth Service
(NYS) will recruit Street Children at District
Level’, The East African Standard, 20 October
2003. ‘500 Street Children Join National Youth
Service’, The East African Standard, 31 October
2003.
68 Ibid.
69 ‘Street Kids back in Full Force’, Capital Group
News Service, 25 November 2003.
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Case study
ROUTINE ROUNDUPS OF STREET CHILDREN IN UGANDA70
In Uganda, the routine round up of street children has continued since the launch of
the government initiative to remove all children from the streets in city areas. They
are taken first to Kampala Central Police Station and then relocated to Kampiringisa
National Rehabilitation Centre - a gazzetted institution for the custody of young
capital offenders. The Solicitor General authorised its use for street children with
conditions attached such as separating offenders from street children and limiting
length of stay to 6 months. According to the Inter NGO Forum for Street Children in
Kampala, neither of these conditions are being adhered to due to lack of resources.
However, the government hopes to extend the programme to all parts of the country.
The Inter NGO Forum for Street Children has recently launched the Kampiringisa
Support Team - a group of 14 NGOs going into the centre three times a week to
minimize the damage to the children and with the eventual aim of encouraging the
government to find the most appropriate intervention for each child – which will
most likely mean referring children to specific NGOs with a good track record for
effective reintegration through foster care / resettlement / independent living
programmes.
1. h)
INTERROGATION
Treatment by the police following arrest is often characterised by the same lack of
respect for human rights shown on the streets and during arrest. For example, in
addition to the examples above, as part of the Street Children and Juvenile Justice
project, children in Kenya highlighted the following injustices: rampant beating and
torture by police officers; being forced or tortured to admit a crime or offence that they
have not committed; changes being made to statements recorded by the police from
the time the statement is taken to the time it is presented in court; and police officers
not taking time and interest to investigate cases.71
I was held in the second regional police department of Sofia
for five days. They kept me in handcuffs the first two days.
Every day they questioned me, and every time I was beaten.
Sometimes they used clubs, sometimes chains. I confessed
to the crime, even though I didn’t do it. (BULGARIA)72
70 Based on information provided by the Inter
NGO Forum for Street Children, Kampala, May
2004.
72 Ivan, aged 16, quoted in Human Rights
Watch, Children of Bulgaria, 1996, p.25.
A policeman caught me. He was wearing a uniform and he
had a warrant for my arrest. First, they brought me to the
[local government] hall. There, they forced me to admit the crime.
They pulled my hair, pinched my belly hard, and they placed bullets
between my fingers and squeezed them tight. I was shaking and
scared because I might get beaten up in jail. Afterwards they
brought me to Kub-Kub. The cell was small, with so many
mosquitoes and it stank. They only fed me noodles and a
handful of rice. I spent three months in jail.” (PHILIPPINES)73
73 Romeo, aged 17, quoted in UP CIDS PST,
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1. i) ACCOUNTABILITY AND COMPLAINT MECHANISMS
Fear normally keeps the children from highlighting
the abuse. (PAKISTAN) 74
The human rights violations described above - and experienced by street children on
a daily basis in many countries around the world - are compounded by the general lack
of monitoring, accountability and complaints mechanisms in place for the police and
private security guards. Reasons for this may include75:
•
•
•
•
•
•
•
•
Children are unlikely to complain directly to police about police abuse, due to the
threat of repercussions and the knowledge that their word will not be taken
seriously against that of a police officer;
Abuses committed by police or security guards whilst in plain clothes can lead to
problems in identifying and holding individuals responsible;76
There is often no special disciplinary unit within the police for the registering
of complaints against officers, with no guarantee that complaints will be followed
up or answered even if they are made;77
Children may not have physical access to the officials responsible for taking
complaints, for example when the building has guards who refuse to allow street
children to enter, or who require all visitors to show identity documents; 78
The police themselves are the ones who make the determination whether or
not to level a criminal charge against an officer who is accused of violating the
law;
It is extremely expensive and time consuming for an individual to bring a
private criminal action against the police or another individual – often well
beyond the means of street children and the NGOs that assist them79– a process
further hampered by corruption and inefficiency within many domestic court
systems;
Some countries, like Egypt, have no mechanism for private criminal action;80
NGOs are wary of antagonizing the police and jeopardizing their ability to
work with street children – there have been cases where NGO involvement in
cases has led to them being denied registration to work in the country.81
All of these obstacles conspire to make it very difficult to successfully lodge and follow
through a complaint against the police force.
1. j POSITIVE EXPERIENCES WITH THE POLICE
It is important to end this section with some of the positive experiences of street
children in relation to the police in order to examine ways in which to transform and
strengthen what is currently the most damaging link in the ‘network’ of street
children’s relationships in the criminal justice system. For example, children in the
Philippines were able to offer the following examples of assistance from the police:
We were given the privacy and opportunity
to talk to our parents.
A policeman gave me food when I got arrested.
I was brought to the hospital when I was sick.
A policeman advised us to apologize so the complainant
would not file a case against us.
A policeman advised us to stop sniffing solvent. (PHILIPPINES)82
74 Amnesty International, ‘Pakistan: Denial of
Basic Rights for Child Prisoners’, Document ASA
33/011/2003.
75 Adapted from the experience of Kenya as
reported in CSC, Street Children and Juvenile
Justice in Kenya, 2004.
76 In relation to Brazil, the NGO Jubilee
Campaign states: “The increasing trend over
recent years which has made almost
indistinguishable the difference between
policeman and security guard, death squad and
security firm, has only served to augment the
numbers of children assassinated in Greater Rio
de Janeiro”, The Silent War, Jubilee Campaign,
1998, p.23.
77 ANPPCAN Kenya’s written response to
Human Rights Watch questionnaire, March 11,
1997.
78 This was documented by Human Rights
Watch when researching the treatment of
unaccompanied migrant children in Spain,
many of whom lived on the street. Email
communication between Clarisa Bencomo,
Human Rights Watch, and CSC, May 2004.
6
79 A notable exception here is the work of
Casa Alianza in Central America which
specialises in legal aid for street children and in
pioneering cases at fora such as the regional
Inter-American Court on Human Rights. For
example, in 1999 in a landmark decision on the
first case ever involving children to have come
before the Court, Casa Alianza and CEJIL
(Centre for Justice and International Law)
managed to win compensation for the families
of five street children in Guatemala murdered
by the police in 1990. However, this victory was
secured only after expensive and exhausting
legal battles lasting for up to 10 years. See
www.casa-alianza.org for more details on the
case of Villagran Morales et al. vs Guatemala,
1999.
80 A victim can take a complaint to a
prosecutor, but unless the prosecutor decides to
investigate and refer the case for trial the only
other opportunity for legal action is a civil
compensation case, and such cases may be
very difficult to win in the absence of a criminal
ruling or documented forensic evidence of
severe abuse (e.g. death or permanent disability
sustained in custody). Street children are less
likely to be properly recorded as being in police
custody, and also less likely to have access to
medical and forensic facilities that could
document abuse in a timely manner.
81 Human Rights Watch, Juvenile Injustice,
1997, p.32.
82 UP CIDS PST / CSC End of Project Report
2003.
87
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The following ‘positive’ experiences of the police cited by street children in Kenya are
very revealing: some children admitted walking into police stations simply because it
offered shelter when they had nowhere else to go:
Some police officers are child friendly and treat children
well (but they are not many).
At the police cells, food is almost guaranteed .
There is a possibility of accessing medical attention while at
police station, particularly for those who are hurt during ‘mob
justice’ or through an accident.
Children with criminal tendencies have the opportunity to change.
At police cells, children have no access to drugs so there is
therefore a possibility of easing or destroying drug habits if the
time inside is long.
Nigeria: what the children like
and dislike about the police –
feedback from street children
during the National Workshop on
Street Children and Juvenile
Justice organised by Human
Development Initiatives and
Consortium for Street Children,
2-4 June 2003. Text reads: Likes:
‘settling dispute’ and ‘they took
good care of me.’ Dislikes:
‘bribery and corruption’,
‘torture’, hand-cuff’, joining
hands with army [armed]
robbers’
There are some agencies which provide legal service to children
who are found at police cells; one can find help from a Good
Samaritan or probation officer who can sometimes facilitate
training for the children.83
The police are good because they arrested me and took me to
the children’s cell after which I was taken to an approved
school where I was trained to knit sweaters. (KENYA) 84
A closer examination of these comments, however, reveals the following points, which
also apply to other countries:
on Juvenile Justice, 2003
84 SNV Kenya and GTZ, The Story of Children
Living and Working on the Streets of Nairobi,
2002.
88
•
Some of these experiences identified by the children tend to represent the ‘least
bad’ option available in difficult circumstances rather than a proactively ‘positive’
experience. This reinforces once again the concept of street children’s
restricted decision making in the face of ‘limited choices’ and ‘nonchoices’, e.g. the choice between risking ‘mob justice’ or risking bad treatment at
the hands of the police; the choice between going hungry or risking the police
cells with an ‘almost’ guaranteed chance of food.
•
These comments also demonstrate street children’s resilience by showing how
they are able to ‘look on the bright side’ of situations and turn negatives into
positives as a coping strategy, e.g. by turning the lack of drugs available into an
opportunity to break an addiction or by capitalizing on detention as chance for
‘children with criminal tendencies’ to ‘change’.
•
The police currently represent one of the children’s main points of
contact for services such as medical attention, food and legal services, and a
possible gateway to ‘training’ of some sort. The implication here is that there is a
great lack of such services available by other means: it is unlikely that, given
the evidence of a much greater likelihood of encountering negative rather than
positive experiences, street children would choose contact with the police for
social welfare support.
On the other hand, there are also genuinely ‘positive’ experiences reported by the
countries that took part in the project.
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PROJECT EXAMPLE
DETERMINING CHILDREN’S AGES AND PROVISION OF LEGAL
ASSISTANCE - NATIONAL POLICE, JIUGALPA, NICARAGUA
In Nicaragua, Casa Alianza reports that, in spite of the poor material conditions and
budgetary difficulties which are behind many of the problems currently experienced
by the police, there are nevertheless some commendable efforts being made to
improve the system. For example, in Juigalpa, when the National Police does not
know the age of an arrested child, they transfer him/her to the forensic doctor with
the purpose of determining the biological age more accurately. This avoids sending
the child to an ordinary jurisdiction, and safeguards their right to be judged by a
specially trained judge for children in conflict with the law. Also in Juigalpa, where
there are few public counsels for the defense, police have established coordination
with the local dioceses and with the Popular University of Nicaragua, in order to get
legal assistance for arrested children.
In the majority of cases, however, experiences of kindness or efforts of more
systematic police reform are often limited. This is supported by the following
comments which are typical:
Some are very good and they say don't sleep in the road,
be careful. Some are very bad and they beat us brutally
and take the money from our pockets. (INDIA) 85
Some [children] told us that at times they had been assisted by
police and referred to certain ‘good’ policemen whom they knew
and could rely on for help, but a greater number said they had
never been helped by the police. (BULGARIA) 86
“There are some good police, but most of them are bad.
They get a kick out of hurting us. (GUATEMALA) 87
Although positive experiences tend to be the exception rather than the norm, the fact
that some individual police officers offer a supportive rather than punitive point of
contact for street children, in spite of similar conditioning and circumstances to their
more abusive colleagues, has interesting implications for police training programmes.
In the same way that characteristics of this ‘positive deviance’ behaviour have been
explored in the context of why some male gang members are more gender-equitable
/ less violent towards girls and women than others, so too can the concept of this
research be extended to the police.88
As initiatives in some countries are showing, capitalising on the fact that the police are
those with whom street children have most contact, there are possibilities to turn this
contact into a more proactively positive rather than negative experience: in other
words, if this contact cannot be avoided (as would be preferable in an ideal world), the
possibility exists to transform one of the most fundamental relationships shown in the
‘net’ diagram in Chapter 5. Many NGOs already work at intervening on behalf of street
children when they are arrested, either on an ad hoc basis or as part of formalized
legal aid programmes and the value of this work in providing a supportive relationship
for the child is immense, as described by an NGO in Delhi, India:
6
85 Human Rights Watch, Police Abuse and
Killings of Street Children in India, 1996, p.25.
1996, p.33.
87 Interview with Dolores, Guatemala City, 6
Watch, Guatemala’s Forgotten Children, 1997,
p.24.
88 Gary Barker of the NGO Instituto Promundo,
Rio de Janeiro, Brazil, has conducted research
examining why some boys and young men in
gangs behave as the exception rather than the
rule in their more positive behaviour and
treatment towards girls and women. He
identifies the following factors of ‘positive
deviance’ in these individuals: 1. Self-reflective
abilities / ability to see the cost of traditional
masculinities; 2. Vocational and cultural
competencies that buffer traditional
masculinities (in other words, boys who have a
skill such as music, dancing, telling jokes etc.
were ‘excused’ from ‘traditional’ behaviour by
other gang members); 3. Availability of adult
members offering alternative gender roles; 4.
Family intervention or rejection of men’s
violence against women in the home; 5.
Alternative, more gender-equitable male peer
group. [Adapted from the notes of a
presentation by Gary Barker, on ‘Gender
Socialisation and Marginalised Children’ for the
Consortium for Street Children, London, 19
February 2001].
89
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As soon as we get to know that a particular child is
apprehended a representative of our organisation makes
it a point to be present at the police station. Our presence most
of the time ensures child's right to be heard, we often play the
role of an advocate for the child even before the Juvenile Welfare
Board magistrate. Our sheer presence makes the child feel
secure and he/she is able to express him/herself in an
otherwise un-child-friendly atmosphere.89
Beyond NGO intervention in police stations and involvement in police sensitization,
however, it is important at this stage to point out that there is a broad range of NGO
opinion on the value and feasibility of working even more proactively with the police,
especially when it comes to the idea of ‘strengthening’ the role of the police in street
children’s experience of the justice system. Whereas some NGOs believe in the value
of making use of street children’s ‘unavoidable’ contact with the police by developing
the role of the police as referral agents to transfer the children to more suitable
services, other NGOs strongly believe that street children’s contact with the police
should be minimised and avoided altogether to the greatest extent possible. This lack
of NGO consensus is the result of different experiences of the police in specific local
contexts which can vary not only from country to country, but also from city to city
and even from neighbourhood to neighbourhood within the same city.
PROJECT EXAMPLE
DIFFERENT NGO APPROACHES TO WORKING WITH THE POLICE IN INDIA
INDIA: The situation of police
treatment as it is (right)
compared with the situation as
the children feel it should be
(left): feedback from street and
working children’s workshop as
part of the Indian National
Seminar on Juvenile Justice, 8-9
April 1999, New Delhi,
reproduced in Juvenile Justice:
Report on the National Seminar
8-9 April 1999, New Delhi by
Butterflies (edited by Rita
Panicker). © Butterflies
An example of these contrasting NGO approaches can be seen in India. In
Hyderabad, Andhra Pradesh, the ‘Children and Police Programme’ (CAP) was
established with support from Dr Reddy’s Foundation for Human and Social
Development to establish Hyderabad City Police posts at railway stations and other
strategic points to intercept street children and channel them towards NGO care
rather than detention in police cells. In contrast, based on local experiences of high
levels of violence and the organisation’s history of dealing with the police,
Butterflies in Delhi believes that NGO collaboration with the police leads to an
erosion of trust in the NGO on the part of the child. Likewise, in contrast to other
Indian NGOs that believe in the value of direct contact between street children and
the police as part of police sensitization projects, this organisation never brings
children directly into contact with the police, using instead case studies as part of
the police training work they undertake.90
One thing which is very clear, however, is that street children themselves have very
clear insights into how they would like the police to behave, as opposed to how they
currently are in practice.
Regardless of the variations in local contexts in the way in which police sensitization
and training projects are delivered, based on the evidence of widespread human rights
violations by the police and security guards outlined in this section, it is nevertheless
important to highlight how essential such projects are in the reform of justice for street
children. See Chapter 7 for examination of reform of the role of the police in more
detail, especially in the context of diversion.
89 Rita Panicker, Director, Butterflies, Delhi,
India in response to a Consortium for Street
Children questionnaire, January 2001.
90 Consortium for Street Children, mission
report, India 6-21 June 2000.
90
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2) DETENTION: POLICE CELLS / REMAND HOMES /
OTHER INSTITUTIONS
Detention of children should be avoided whenever possible. In most cases the benefits
for the child and society are limited, whilst the damage can be overwhelming: in
addition to blatant human rights violations that occur in institutions, detention
contravenes the principles of restorative justice and contributes to the isolation of the
child from their communities and support networks. However, despite extensive
knowledge, theory, experience and guidelines that detention should be used only as a
last resort and even then only for the shortest possible time (CRC Article 37(b); Beijing
Rules 13(1); JDLs I(2)), as can be seen from the overwhelming prevalence of ‘bars’
through the diagram in Chapter 5, detention is most often used as a first and only
resort, often for the longest rather than the shortest possible time. Detention starts at
the police cell and continues into remand (before and during trial / hearing), and then
usually as a preferred sentencing option. During this time, the child can be subject to
multiple forms of abuse, as these testimonies from Pakistan show:
They take “white and beautiful” children with them, keep
them inside jail, have group sex with them and leave
them in the morning. The child is beaten badly in case of refusal
and kept in locks…
They torture us physically - kicking, beating with leather shoes
and sticks, slapping and shouting abuse
They use different cruel styles of punishment like being beaten,
hung upside down, whipped with a rubber strap or leather slipper…
We are sometimes made to wear iron shackling; They torture us
physically, mentally and emotionally to force us to confess or
give information about a case; They force us to accept
the crimes which we did not commit…(PAKISTAN) 91
6
As discussed earlier, many street children involved in the juvenile justice system are
locked up due to a lack of alternative facilities, their inability to post bail – even if it is
offered, and lack of contact with responsible adults to whom they may be released.
2. a) ISSUES AFFECTING GIRLS IN DETENTION
As highlighted previously, due to their minority status in criminal justice systems,
girls in detention face specific problems such as access to reproductive health care
and sanitary supplies. These issues become even more complex in the case of girls
who are pregnant or who have babies with them in detention. In some countries,
the lack of appropriate facilities for girls or the small numbers of girls in a given
facility may also mean that they are deprived access to services that boy detainees
may receive, such as education, time outside of cells for recreation, etc. Where
both girls and boys are detained at a facility, assumptions about girls’ social roles
may mean that they are more likely to be required to work as cleaners, cooks, or
perform other ‘domestic’ work in the facility. A 2003 Human Rights Watch report
on Brazil found that several facilities for detained girls were markedly older and
more dilapidated than most of the boys' detention centres, and offered girls fewer
recreational opportunities than boys, especially opportunities for outdoor
recreation and large muscle exercise. 92
92 Clarisa Bencomo, Human Rights Watch,
email communication with Consortium for
Street Children, May 2004, citing Human Rights
Watch, Cruel Confinement: Abuses Against
Detained Children in Northern Brazil, 2003,
http://www.hrw.org/reports/2003/brazil
91
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In the children’s recollections, experiences in detention often merged into each other,
regardless of the location or stage at which they were detained. This is indicative that
all detention is perceived by children as punitive and that the system fails to
distinguish between the innocent and the guilty, between those already convicted and
those unfortunate enough to have been picked up regardless of involvement in a
crime. For this reason, the experiences related throughout this section from the
children’s perspectives are considered under the heading of ‘detention’ in general and
are not separated by location or stage of the system unless specifically stated.
2. b) REMAND / PRE- / UNDER-TRIAL DETENTION:
Pre- / under trial remand is particularly abusive and excessive and accounts for the
majority of children held in institutions in many countries. According to international
law, detention before trial “shall be avoided to the extent possible and limited to
exceptional circumstances…”.93 However, in Pakistan, as of March 2003, out of a total
of 2339 children detained in prisons alone (i.e. not taking into account detention in
police cells and other institutions) in just four regions of Pakistan, 1942 (83%) were
under trial, or waiting for their trial to start.94
If I had a guardian to come claim me, I could
leave today! (GUATEMALA) 95
Pre-trial detention of children has been found to last as
much as one year. Some criminal cases are just left
unattended to while children languish away on remand. Children
in the homes feel the police have forgotten them there.
(NIGERIA) 96
93 UN Rules for the Protection of Juveniles,
Rule 17; see also Beijing Rules, Rule 13; CRC
Article 37(b).
94 Source: National Commission for Child
Welfare and Development Records (March
2003), cited in AMAL / CSC, Street Children and
Juvenile Justice in Pakistan, 2004.
95 Girl quoted in Human Rights Watch,
Guatemala’s Forgotten Children, 1997, p.55:
“Children with families able to ‘push’ to get
them out may be released pending their
definitive hearing. Several untried children we
interviewed told us they were only being
detained because their parents had not come to
get them out.”
In Kenya, the period of detention, although supposedly 24 hours or less, can actually
extend to weeks and even months. Delays in processing and constant postponements
are common due to lack of transport between the institutions and the court, delays in
contacting parents or guardians, unavailability of judicial personnel at weekends, lack
of coordination between departments responsible for investigating and writing
reports, excessive workloads of probation and social services staff, bureaucracy and
general inertia.97 In some cases, the combination of poor conditions and insecurity as
to how long they will remain in the remand home pushes many children into pleading
guilty for their crime whether or not this is actually true, simply because to do so
usually resolves their case more quickly:
Some children just plead guilty because they think things
will happen faster. They don’t want to stay in remand. The
conditions there are bad – not enough food and many kids get
scabies. In adult remand prison it’s even worse…
(KENYA) 98
96 Ariyo Okunsanya, HDI / CSC, Street Children
and Juvenile Justice in Lagos State, 2004, p.73.
97 See e.g. Skelton, A. (1999) ‘African Focus:
Juvenile Justice in Kenya’, Article 40, Vol.1
Issue 2. August 1999 and U.S. Department of
State (2002) Kenya Country Report on Human
Rights Practices for 2001, Section 2(d).
98 Human Rights Watch, interview with
probation officers of the Juvenile Law Court, in
Human Rights Watch, Juvenile Injustice, 1997.
92
Detention in general can have severe negative impacts on the young person’s own
perception of themselves, their confidence and self-esteem. In the case of pre-trial
detention, many children and young people feel as if they have already been labelled
as an offender. This is particularly unfair in the case of street children who, as seen in
the previous section, are subject to arbitrary and illegal arrest regardless of whether or
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not they have committed any crime. Whilst considering the experiences of street
children in detention outlined below, it should therefore be remembered that by far
the greatest majority of them have not been convicted of a crime, and in many cases,
due to the use of the criminal justice system to process social welfare cases, they have
not even been detained for being in conflict with the law in the first place.
2. c)
DETENTION WITH ADULTS
The right of every child to be separated from adults (unless it is considered in the best
interests of the child not to be) is one of the key principles of juvenile justice
administration (CRC Article 37(c); Beijing Rules 13(4); JDLs 29). However, contrary to
all of these international standards, it remains a common problem at both pre-/ undertrial and post-trial stages. For example, in Nicaragua, although arrested girls are
usually separated by gender, they still often find themselves co-habiting with adult
women prisoners due to space restrictions. Similarly, boys are frequently detained in
the same cells as adult offenders, particularly in the Department of Managua, which
suffers from considerable overcrowding. On average, it was found that just under 25%
of the children visited in detention as part of the Street Children and Juvenile Justice
Project were confined in the same cells as adults.
Children are put together with adults in the police cells,
some of whom have committed capital offences.
Anti-social behaviours such as sodomy take place in the
cells. (KENYA)99
I spent two weeks in jail. All we had to eat was the rice
that stuck to the bottom of the pots. The toilet at the jail
is clean. Children and adults are together in jail. Inside the jail,
adult inmates do shameful things, such as masturbation.
6
(PHILIPPINES) 100
I was in a big cell [in the adult section of the al Azbekiya
police station], the size of three rooms, with my friend.
There were bigger and smaller kids with us. The smallest was ten.
There were adults with us. The adults hit us. I was hit a lot. We
were there for about five days, and then they sent me
home. (EGYPT)101
99 Child participants at the National Workshop
Kenya, March 2003.
We put the children or the young people in the same place
with the adults, while there is no court to judge the offences
committed by children. The trials just go so long and when the child
comes out of the detention center he is a well-trained
offender, ready to commit other offences. (ALBANIA)102
100 Romel, 15-year-old boy, quoted in UP CIDS
PST, Painted Gray Faces, 2003, p.104.
101 Tariq A., aged 16, Cairo, Egypt, July 9, 2002
Human Rights Watch, quoted in Charged With
Being Children, 2003, p.4.
102 Lawyer for a 16-year-old boy accused of
theft who – at the time of the report - had been
in detention awaiting conclusion of his trial for
five months (and who allegedly attended his
first hearing with blood still on his tee-shirt
from abuse suffered in the police station) ,
quoted in Hazizaj, A. and Barkley, S.T., 2000,
p.75.
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Similarly, in Nigeria and the Philippines boys reported that they were detained in
the same cell with adult criminals, complaining in the case of the Philippines that they
were sexually abused by other inmates and treated as slaves – e.g. they were forced to
wash clothes and give massages.103 In Pakistan the practice of detaining children with
adults is so well entrenched that an attempt by some of the jail authorities at Sukkur
Jail to separate boys from the adult prisoners reportedly led to riots inside the prison
in the mid-1990s. It was painfully obvious that the rioting adult prisoners had a stake
in keeping the children with them. In 1994, a medical examination was conducted of
juvenile inmates of the Lahore Camp Jail revealing that 80% of the children had been
sexually abused, most of them repeatedly. The jail authorities defended themselves by
saying that the police had abused the boys while they were in custody at police
stations before being sent to jails.104 Allegations of this type of abuse are also made of
other countries: out of a 1998 survey of 170 boys in the four main prisons in Malawi,
40% cite being abused (including physical, sexual, mental and economic abuse):
“There were serious allegations made by some juveniles that sometimes they are
deliberately taken to adult cells to provide sexual services. Unfortunately, there was
no way of verifying this claim.”105
2. d) PHYSICAL CONDITIONS IN DETENTION
The following quotations and the case study from India illustrate common complaints
about conditions in detention regarding food, healthcare, sanitation, sleeping
arrangements, overcrowding and clothing as experienced by street children in
detention facilities:
They take a bucket – everyone comes in there and
it’s full. You go to sleep near the waste. (KENYA)106
There’s this issue of people fighting in the cells. You’re a
child and there are big people fighting in the cell.
You are not fighting but you are going to be affected.
(KENYA) 107
103 UP CIDS PST, Painted Gray Faces, 2003.
“You have to wear the same clothes for one month – only one set, often infested with
lice which feed on your blood. You have to wash the clothes on a stone and put it on
when it’s still wet. The clothes are worn through with maybe only one button at the
top and even this may be broken. Even your buttocks are like that where the cloth is
work through from sitting. You don’t have any flesh on you because everything you
have eaten has nourished the lice and bed bugs. You have one blanket that’s aged
until the edges are frayed – between 6 people. It gets torn because you are all pulling
it, but there is no replacement. You are sleeping on wood – not smooth, but rough –
6 planks of rough wood. Nobody cares if you wake up in the night.”(Kenya)108
Justice in Pakistan, 2004, citing Zahir Shah, We
Need New Legislation, The Nation Friday
Review, Feb. 3, 1995, p. 8.
105 Centre for Youth and Children Affairs
(CEYCA), A Survey Study Report on the Juvenile
reform Centres, Malawi, January 1999, p.25.
107 Ibid.
108 Ibid, describing conditions in Approved
Schools in Kenya.
The toilet stunk. The walls were full of graffiti and reeking
of urine odor…You could not use the toilet bowl when
you defecate, you could only use a can. You couldn’t even
eat properly. (PHILIPPINES) 109
109 Children from Mindanao, quoted in UP
CIDS PST / CSC End of Project Report, p.13.
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They have no proper place for us… Most of the time I
slept in standing position and there were 8 individuals in
a small lock up room.” “The food provided inside the jails
is low standard and unhygienic. (PAKISTAN) 110
The police station is bad, very bad. It stinks. It is dark and
very congested. You cannot see the sky.
(BANGLADESH) 111
Conditions in detention – India
Prior to government reforms in Andhra Pradesh in 2003112, referring to one
home in Visakhapatnam to which children ‘raided’ from their workplaces were
taken, an NGO source in 2001 described it as “disgraceful. The amount provided
per month for food is inadequate. The children have no winter clothing or
blankets, and almost no medical care. They are, in our opinion, better off
working in 70% of the cases. The so-called ‘education’ given in these ‘homes’ is
close to useless. If you ask the State Government what the budget is per child
per month, and what it covers, then the children are fed at below the poverty
line, have inadequate medical services and medicines, have insufficient
clothing and bedding, and have almost no organised non-formal education. The
basic living conditions caused by the budget limitations are in themselves cruel.
There appears to be no machinery to review the cost of food provision on a
yearly or even 3-yearly inflation actual cost basis. Many NGOs and social
organisations like ours give additional food to these homes and supply clothing
and bedding plus medicines.”113
Further examples of such problems include Kenya where, as part of this project,
children complained of poorly ventilated and overcrowded police cells and
overcrowded remand homes (where, for example, according to a 2002 report by the
governmental Standing Committee on Human Rights (SCHR), the Nairobi Juvenile
Remand Home held more than 4 times its capacity of 100 detainees).114 In addition to
complaints regarding lack / poor quality of food, lack of medical treatment and
clothes, and “having to shave your head as if you had already been sentenced as guilty,”
the children also highlighted the corruption within Kenyan remand homes. For
example, they spoke of “staff diverting to their own pockets donations brought for the
children by well-wishers;” staff colluding with outsiders to illegally engage girls as househelps; staff portraying a positive image of the institutions whenever there are visitors
coming to the home; and teachers at the remand homes taking away valuables that
belong to the children.115
6
110 AI Amnesty International , ‘Pakistan: Denial
of Basic Rights for Child Prisoners’, Document
ASA 33/011/2003.
111 Eight-year-old boy quoted in Zaman Khan,
S., Herds and Shepherds, 2000, p.19.
112 The Indian government has recognised the
problems highlighted here and in August 2003
the Juvenile Welfare, Correctional Services &
Welfare of Street Children Department in Andhra
Pradesh put into practice a scheme of comanagement of the state's children's institutions
with selected NGOs with a view to improving
conditions for children in line with the CRC. This
scheme is discussed in more detail as an
example of collaboration in Chapter 2.
113 NGO that wishes to remain anonymous,
India, in response to a Consortium for Street
2. e) TREATMENT IN DETENTION
In many countries places of detention are little more than warehouses ‘completely
inadequate for any sort of child rehabilitation or development to take place,’116 with
limited or no education or training facilities. At the worse end of the scale, the
boredom of being locked up for most of the day is interspersed with “heavy and
punitive labour”117 labour, beatings and humiliation; at the better end, dedicated staff
struggle to provide basic education or vocational skills in difficult conditions with
limited equipment and materials.
114 Quoted in U.S. Department of State, Kenya
Country Human Rights Report 2002, 31 March
2003.
116 International Childcare Trust Kenya (2003)
Street Lives – Juvenile Justice Issue, June
2003.
http://www.sollernet.com/ictk/news603.pdf
117 Street children’s comments on remand
homes in Kenya, USK, Report on Street Children
Conference on Juvenile Justice, 2003.
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In the room, if we play, we get beaten if we make
a noise. (INDIA) 118
I’ve been taken to the police station many times. Once I
stayed there for five days. Sometimes they gave me some
bread to eat. There was a jar in the cell in which we could go to
the bathroom. There were three other girls in the cell with me.
There was only one big bed in the cell, so we all shared it. There
were no blankets. While I was there, the police handcuffed me
and put a hat over my head so I couldn’t see anything, and
started beating me with a chain. I begged them not to
beat me, but they told me I had stolen. (BULGARIA) 119
I got beaten up and they electrocuted my ass. The cell
smelled so badly. I don’t know, if it smelled like shit or
pee. You can’t eat with that smell. I was in jail only for two days.
A policeman friend set me free. When I got arrested for vagrancy,
I got beaten up. They beat me up as soon as they arrested me.
They hit me with the butt of their guns and I was electrocuted.
They placed bullets between my fingers and squeezed it tight.
The toilet was unbearable. The walls were dirty with graffiti. A
trash dump’s better than prison. When you have to go, you use a
tin can. You could step on the urine-filled floor while eating. They
always served Lucky brand sardines. They asked me to clean the
toilet. My policeman friend gave me cigarettes. He wanted me to
become an informer. Life in jail won’t bring anyone good, only
hardship. I’ll get even. I am so frustrated and I feel sorry. I realize
that there are policemen who could make things worse for me.
The police are devious. They’d accuse you of having
taken drugs. One move, you get beaten! (PHILIPPINES) 120
118 Ravi, aged 8, in Blewett, K. and Woods, B.,
2001.
119 Antonia, an eight-year-old girl who begs in
the open air market in downtown Varna,
describing her detention for five days in a
police station, Human Rights Watch, Children of
Bulgaria, 1996, p.27.
120 David, aged 15, quoted in UP CIDS PST,
Painted Gray Faces, 2003, pp. 99-100.
The other girls in jail tried to do bad things to us by force.
When we complained to the guard women, they in turn
complained against us and told the offenders to beat us
up. (BANGLADESH) 121
121 12-year-old girl and an 11-year –old boy,
respectively, quoted in Zaman Khan, S., Herds
and Shepherds, 2000, pp.21-22.
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Newcomers are pestered and searched by the prisoners
and drug addicts for money. We are beaten if we don’t
have money. Sometimes the police take all our money. At times
we are detained for four days … without being taken to
court. These are never recorded in the books (police
records). (BANGLADESH) 122
The children come in from the police stations beaten up,
and tied together with ropes. They smell horrible—even
the detention room downstairs smells bad and is filthy. [In the
police stations] the police beat them and hang them from their
feet and use electricity on them. I’ve seen a seven-year-old
come in with his face swollen from the blows. When you ask the
mukhbirin [low ranking police] who brought them about the
children’s condition they tell you, ‘Those [children] deserve
worse than that treatment. They run away and they lie.’ If you
ask the child, the child is afraid to talk about ill-treatment by the
police because he knows he will be hit when he leaves
[the social welfare experts’ interview room]. (EGYPT) 123
Sexual abuse, as examined earlier in the context of both girls’ and boys’ experiences on
the street at the hands of the police and private security guards and when held in
detention with adults, is also rampant in detention. As part of the Street Children and
Juvenile Justice Project, children in Kenya, Pakistan and the Philippines
highlighted this as a key complaint. One child at the workshop in Pakistan described
being abused by a group of 8 policemen whilst in detention, while another suggested
that abuse had become almost a standard practice among some officials.124
6
The girls go into the police cell and have to do sexual
intercourse with the police to get released, but
she is not released. The policeman is even 42 and the
girl is 16. It’s really bad.
Boys are not really [sodomised] by the policemen, but
they are done this by the big street children in the
cells. When a big person is brought to the cells they are
done this. (KENYA) 125
122 15-year-old boy quoted in ibid, p.21.
123 Social Welfare Expert, Cairo Juvenile Court,
Cairo, Egypt, July 3, 2002, in Human Rights
Watch, Charged With Being Children, 2003, p.4.
Justice in Pakistan, 2004, p.41.
Examples of “severe police brutality” in Bulgaria are given by Human Rights Watch in
a 1996 report and include children being beaten with electric shock batons, clubs,
1996, p.4.
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chains, rubber hosing, boxing gloves, and a metal rod with a ball at the end of it: “One
boy was stripped of his clothing, doused with water, and beaten on the soles of his feet
with an electric shock baton.”126 Contrary to international guidelines, (JDLs 67, BJ
17.3, VG 18) corporal punishment is frequently used as a form of discipline in remand
homes and approved schools where staff lack understanding and training with regard
to non-violent alternatives. In Egypt, a mid-level police officer told Human Rights
Watch that he beat children brought to the police station to discourage them from
staying on the streets, although he doubted that beatings were an effective deterrent:
I hit them and still they come back. I choke them and still
they come back. These children are a lost cause.
(EGYPT) 127
In addition to physical violence, the children also complained of degrading treatment
and humiliation. For example, in Kenyan remand homes a degrading search is
usually conducted on children on arrival at remand homes without due respect to
gender e.g. a male teacher searching female children, and they have their heads
shaved by broken sharp objects such as broken bulbs.128 Complaints regarding use of
abusive language are also common, such as police and other staff calling children
prostitutes or children of prostitutes, and indicate yet again the extent to which
children are degraded within the system. For example:
They pointed their fingers at us insultingly. They gave me
harsh words, that I was a good for nothing girl, a
prostitute. They only apprehended us, the girls… While in the
pick-up, he [the policeman] said that he would bring me to the
Annex, a motel here in Davao. He told me to massage him. He
said that he would feed me and give me amphetamines. In jail
cell, we slept on the floor. There was no food, and I
cleaned the toilets. (PHILIPPINES) 129
In Pakistan, degrading and humiliating experiences in juvenile cells in prison include
brutal beatings, orders to sweep the floors with cloth strung in sewerage water, sitting
crouched with bowed head and gaze locked downwards, use of fetters and solitary
confinement. 130
1996, p.4.
129 Cynthia, aged 15, quoted in UP CIDS PST,
Painted Gray Faces, 2003, p. 101.
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Case study
‘A WASTE OF LIVES’: CYCLES OF VIOLENCE IN BRAZILIAN DETENTION 131
‘A Waste of Lives’ is the title given to the report written by Amnesty International in
July 2000 on conditions in Brazil’s juvenile detention centres which are managed by
government institutions called FEBEM (Foundation for the Well-Being of Minors). In
theory, the law in Brazil in relation to children centres on the progressive and
comprehensive 1990 Statute of the Child and Adolescent (ECA) which incorporates
many aspects of international human rights guidelines on juvenile justice. In states
in the Brazilian federation where the ECA is actually being applied, and where the
FEBEM system (which dates back to the 1960s) is being reformed, the results are
very positive.
However, horrific conditions have been revealed in some states.132 According to an
international expert on prison conditions who visited Brazil in October 1999 with
Amnesty International: “I should say as clearly as possible that I have never seen
children kept in such appalling conditions...In my view the place should be closed
down.” The report describes the following conditions: 25 boys having to share a 2 x
3 metre dormitory - with some boys sleeping sitting up or in the bathroom; only one
bar of soap per month to share between ten, leading to epidemics of skin diseases;
regular beatings with iron bars and wooden soled shoes, and then being made to
stand under a cold shower for half an hour to reduce signs of bruising; boys being
made to face the wall with their hands on the back of their neck for periods of up to
a whole day; having their toothbrush - their only personal possession - confiscated;
and being verbally, as well as physically, humiliated on a daily basis, with no
educational activities to occupy them.
With only 10 - 15 untrained staff to oversee 350 boys, and with no clear rules about
how to administer discipline, wardens resort to violence as the only way to ‘control’
conditions described by the president of their union as ‘hell’. However, the situation
is not ‘controlled’: from 1998-2000, São Paulo’s detention centres saw more than 15
rebellions, with many deaths and hundreds of wounded. A vicious cycle is repeated
again and again: riots, fires, hostage-taking, negotiation, promises, intervention of
military police troops, violent end to rebellion, broken promises, increased violence
against the boys as punishment, leading in turn to new protests once again.
More recent reports from Amnesty International reveal that, although Franco da
Rocha, one of the most notorious FEBEM units was finally closed down in December
2003, torture and ill-treatment is still taking place in other FEBEM units: as of
January 2004, at least 60 boys had reportedly complained of being tortured
(including reports of children having teeth pulled and of being threatened with death
if they reported the abuses) in the Tatuapé centre, and in April 2004 a report was
received from Raposo Tavares detailing horrific conditions and torture. In January
2004 two boys were shot (one dead) during an alleged escape attempt from the Vila
Maria centre and at least 10 other adolescents died in the FEBEM system in 2003.
The new president of the FEBEM system recently wrote to Amnesty International
assuring them that since taking over (in early 2004) there have been no further
reports of violence against the boys and that they are dismissing many guards for
reports of corruption and violence. Although the prosecution service is slowly
beginning to prosecute guards under the Brazilian torture law, this process is
slow.133
In the words of Julio, aged 14, a street-living child taking crack and sentenced for
two months for robbery: “If you don’t walk with your hands behind your back, they
beat you; if you don’t call them ‘Sir’, they beat you; anything you do, they beat you
up. Anything the guards don’t like, they beat you. If you talk when you’re not
supposed to, they beat you. Anything you do, they beat you. I came out really angry,
worse than when I went in. I learned nothing there.” [On being sentenced to 2
months]: “It’s very bad, sir. But I won’t stay that long. I’ll do something. I don’t think
I’ll be able to take 2 months. I’ll just stay till I put on some weight, then I’ll get out.” 134
6
131 Based on information from: Amnesty
International, ‘A Waste of Lives’, 2000 at
www.amnesty.org/ailib/aipub/2000/AMR/21901
400.ht; Stumpf González, R., (National
Coordinator of National Movement of Street
Boys and Girls, Brazil), Why Perpetuate an Old
and Sad History? The Case of FEBEM, Sao
Paulo, November 2000; Consortium for Street
Children material for Methodist Association of
Youth Clubs ‘Street Apart’ campaign, January
2001; and CSC communication with Tim Cahill,
Amnesty International Brazil Desk, 8 August
2002.
132 E.g. through the campaigning work of local
organisations such as the MNMMR network
(National Movement of Street Boys and Girls).
See also the report of the UN Special
Rapporteur’s mission to São Paulo from August
to September 2000; Amnesty International, A
Waste of Lives, 2000; and Human Rights Watch,
Cruel Confinement, 2003.
133 Information compiled from Amnesty
International, ‘Adolescents held in the FEBEM
juvenile detention system, São Paulo’, 22
January 2004 (AI Index: AMR 19/002/2004) and
correspondence between Amnesty International
and Consortium for Street Children April 2004.
134 Interview with Julio, Sao Paulo FEBEM
detention centre, in Blewett, K. and Woods, B.,
2001.
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2. f) POSITIVE EXPERIENCES IN DETENTION
In spite of the majority of negative experiences recounted by the children, as with the
police, they were also encouraged to report on their more positive experiences in
detention. However, in Kenya, although on the positive side street children participating
in the workshop suggested that in remand homes they were at least assured of food,
shelter and (if they were lucky) limited education, they nevertheless felt that such
benefits were often outweighed by the negative aspects.135 ‘Positive experiences’ in other
countries appear to range from merely guaranteeing children basic rights to which they
should be entitled anyway, to much more proactive and imaginative efforts by caring staff
and authorities to improve services for children even in spite of resource constraints.
PROJECT EXAMPLE
SMALL ACTS OF KINDNESS AND ‘OPERATION SECOND CHANCE’
IN THE PHILIPPINES
In the Philippines, some of the children as part of this project reported that they were
taken care of by the police (e.g. given sensible advice, food, clothing, medicine, and a
good place to sleep – sometimes using their own money). They explained that
sometimes their parents were called during the investigations, that social workers also
talked and discussed the case with their parents and they were allowed visits by their
parents, friends, NGOs and church groups in jail. In the rehabilitation centres they were
given the opportunity to continue studies, taught good manners and given light
punishment for misdemeanours. Mass and Bible studies were also conducted and the
rules were lax so that in some cases children were allowed to use their cellular phones
in the homes. Some children in the centres said that they were treated like family
members and not like criminals (“the houseparent did not just do her job responsibly
but really cared for us”) and that they were provided with various skills that would be
useful once they were released from the centre. One child even said that social workers
had taught him to read and write. Meanwhile, another participant said that he was given
an educational scholarship after his release.
In Cebu, meanwhile, a separate facility has been established for children who await trial
under a programme known as Operation Second Chance, the result of a broad-based and
multi-sector effort begun by the Cebu City Taskforce on Street Children (CCTFSC). CCTFSC
is a network of 22 organisations divided into several committees: legal, advocacy, finance
and programmes, which handle special projects including the training of judges. 136
PROJECT EXAMPLE
COMMUNITY COOPERATION TO IMPROVE CONDITIONS AND TREATMENT
IN POLICE DETENTION – NATIONAL POLICE, NICARAGUA
135 CSC, Street Children and Juvenile Justice
in Kenya, 2004, p25.
136 UP CIDS PST, Painted Gray Faces, 2003, pp.
158-161.
In Nicaragua, in relation to the National Police, Casa Alianza Nicaragua noted the
following good practices. For example, in spite of personnel constraints, the Juigalpa
police permit children to receive visits from their families on a daily basis if desired. In
District 2 of Managua, San Rafael del Sur and Juigalpa, the police have established
coordination with final year medical students at the American University (UAM), private
doctors and local dispensaries to provide check-ups and assistance for the children.
Further examples of cooperation with the local community include: authorities in
Managua, District 4, developed contacts with business people in the Oriental Market to
help finance remodeled walls in deteriorating cells and to fund regular fumigation in the
cells; the Popular Law Office in the Central American University (UCA), promotes a
project for legal defence of inmates in Police Delegations One and Four in Managua,
whereby one or two senior law school students stay during certain hours of the day to
help safeguard the inmates’ human rights within that Delegation; in the Mateare Police
Section, Managua, inmates receive three meals a day, comprising the same food that
police officers themselves consume due to the close relationship established between
the police and the community; civil society organizations in San Rafael del Sur
guarantee lunchtime food, medication and weekly disinfectant for inmates to
supplement the police budget which has not increased since 1990. 137
Justice in Nicaragua, 2004, p.33.
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PROJECT EXAMPLE
COMMUNITY COOPERATION TO IMPROVE CONDITIONS AND TREATMENT
IN THE NATIONAL PENITENTIARY SYSTEM – NICARAGUA
Although indicating that there is still much room for improvement, Casa Alianza
Nicaragua has also documented efforts to improve conditions in the national
penitentiary system with initiatives around culture, recreation, sports, family visits
and education. For example, in Chinandega Penitentiary, monthly visits from the
Criminal District Judge for Adolescents contribute to strengthening working
relations between the sectors, and help to ensure follow-up on specific children.
One official is required to remain all day in the adolescents’ gallery to attend to
their concerns and needs and a doctor and psychologist are permanently on the
premises. Furthermore, links have been established with local organizations and
education centres that regularly carry out recreational activities and friendship
building with the children. In La Modelo prison at Tipitapa, Managua, authorities
likewise coordinate with the Ministry for Education, Culture and Sports and other
state and civil society organizations in carrying out educational courses and
training sessions for children in the center (including on human rights). With the
approval of the MECD, penitentiary officials organized an English course for children
in the center, imparted by one of the adult inmates, and other artistic and cultural
activities have been promoted. Film-making has also been authorized: the 2002 film
“La Isla de los Niños Perdidos” [The Island of the Lost Children] was well-received
by the Nicaraguan public and won two awards in Europe. 138
NICARAGUA: some staff and
young people from the NGO Casa
Alianza Nicaragua, April 2002.
Case study
REDUCING NUMBERS OF CHILDREN IN DETENTION IN ROMANIA
In Romania, prompted in part by pressure from international organisations, there has
been considerable improvement in reducing the numbers of children in detention:
“Statistics from the General Directorate of Penitentiaries show that in 1996 there
were over 10,000 juveniles held in custodial establishments in Romania (both in
prisons and Centres of Reeducation). By 2003 this figure had been reduced to under
1,000. These reductions are evidenced both in a decline in the number of juveniles
held in custody on preventative detention (remand) and those definitively
sentenced.” 139 This is born out by specific statistics in relation to remand as
follows: as of 1 June 1997, almost 60% of the 2,662 children in penitentiary
detention centres across Romania were without conviction and awaiting trial. 140
However, this percentage had been reduced in 2002 to 25.79% (342 boys and 15
girls) out of a total of 1,384 children.141 The reduction in numbers of children
definitely sentenced to detention is directly related to the development of the
probation system, with the support of the UK Department for International
Development, across the entire country.
6
138 See
http://www.filmfestival.gr/docfestival/2002/proc
ess_en.php?movieid=223&eventid=63.
In Nigeria the children spoke positively of Social Welfare Officers in some of the
homes, explaining that “they are caring; they take us to hospital; they help by going to our
homes and talking to our parents; they stay with us and ensure that we are not alone; they
take us to their houses.” They also pointed out that, although conditions varied, in some
schools, the children are “free to go to work for money, go to school, and feed themselves.
Girls are spoken to nicely, advised, and treated as it they are the officers’ own children.”
139 Haines, K ., Mansell, C., Shaw, R.& Goatly,
R., Probation in Romania, Report 2003
140 Source: The Ministry of Justice/General
Directorate of Penitentiaries, reprinted in
Government of Romania’s Second Periodic
Report to the CRC Committee, 2002.
141 Ministry of Justice – Penitentiary General
Division, The Statistic Annuary 2002.
101
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Practical tips
REFORM OF CONDITIONS AND TREATMENT
IN DETENTION IS POSSIBLE
Two themes seem to emerge from these positive experiences:
•
There are individual staff and particular departments that do not conform to the
pattern of criminalising and stereotyping street children within the justice system,
but who show understanding and compassion for their situation;
•
The most effective interventions to reform conditions in detention involve active
collaboration with the community.
As with the children’s positive experiences with some police officers, these examples
show once again that reform in favour of children’s rights is possible if stereotyping
and discrimination is challenged at the level of individual and group sensitization,
and if inter-sectoral and community relationships are strengthened.
3) TRIAL / HEARING AND SENTENCING:
JUDGES AND LAWYERS
3.a) GENERAL EXPERIENCES
Experiences of the children at this stage were mixed, ranging from worst to best case
scenarios.
They tell fake accusations and you have to accept what
you’ve been accused of. You’re never given a chance to
say anything in court. The whole process is too fast. They just
make up things for you. They accuse on what they think is good
[appropriate] for you. Accusations should be investigated.
Nobody was there to investigate. If you continue denying the
case they tell you go back to the remand centre and come back
after 14 days. You have to accept the crime that they’re
accusing you of so that you are set free. (KENYA) 143
143 Street girl participant in the National
Justice, 6-7 March 2003, Nairobi, Kenya.
144 14-year-old girl at the National Workshop
on Street Children and Juvenile Justice, Lagos,
Nigeria, June 2003, quoted in HDI / CSC, Street
Children and Juvenile Justice in Lagos State,
2004.
102
Children are not given the chance to speak or defend
themselves; Children are held in handcuffs; Sometimes
children become hopeless and feel like they want to die;
Children do not reply to the police statement. (NIGERIA) 144
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There is not much we can tell about our experience in
court. We couldn’t forget that the hearings always get
postponed. We have always waited for the judge to appear.
Meanwhile, we get stuck inside the jail. (PHILIPPINES)145
The case against me was filed when I was still a minor,
but when the sentence was handed out, I was
already over 18 years old. (PHILIPPINES) 145
[The children] also, at times, don’t see and feel any
support from the judges and lawyers. The former are at
times biased and don’t give the child the chance to explain
himself. The latter, meanwhile, persuade the child to
admit to the crime even if innocent. (PHILIPPINES) 145
We heard that in court we have to say that we were guilty
in presence of the magistrate. It is a custom. If we don’t
do so, the police will torture us and we will be sent back
into police custody. (BANGLADESH) 146
6
The prosecutor took the police investigative report but
didn’t ask any questions. They didn’t say what I was
charged with. They just wanted to send me back to the
countryside. I didn’t see a judge. Only criminals see a
judge. (EGYPT) 147
Child’s rights researchers in the Philippines as part of this project note that this trial
period is often “a blur to the children, with the experiences not as vividly remembered
compared to those during arrest or detention.” In terms of the worst case scenario,
testimonies from children in the Philippines include the following: the progress of
cases was very slow due to frequent postponement; those who filed the case against
the children do not often appear in court; children were persuaded by judges, lawyers
pp.111-113 and 122.
146 13-year-old boy, quoted in Zaman Khan, S.,
147 Anwar R., aged 15, Cairo, Egypt, July 9,
2002, quoted in Human Rights Watch, Charged
With Being Children, 2003, p.4.
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and social workers to admit the charges “in order to speed up trial and enjoy
suspended sentence”; they have difficulty in understanding court processes/hearings
since the judge usually uses English - a language which these children could not
understand.
What was significant for us is that the hearing of our
cases keeps getting postponed. We had to keep on
waiting for the judge. This lengthens our stay in jail. We liked it
though when our lawyer accompanied us to court. Still, we
would have preferred it if a social worker and our parents
accompanied us. Having somebody with us will make things less
scary and threatening. Some judges also advised us to plead
guilty to the charges that were filed against us. They say this will
hasten our transfer to the rehabilitation centre.
(PHILIPPINES) 148
Many children said that they were handcuffed on the way to and during the hearing,
with the restraints removed only when the judge called on them and asked them to
stand. Some of them even said that they were afraid of the judge who looked like a
vampire to them in his black cape. During the hearings, they were fearful and nervous
because they already believe that they have already been convicted. Many of them
also felt ashamed for having to wear prisoners’ uniforms.149
In Nicaragua, although there are slow improvements being made to ensure that
children are remitted to a judge by the police within 24 hours, in places far away from
the headquarters of the Criminal District Court for Adolescents in Managua, it is still
not possible to comply with the term established by law.150 In Kenya the children
complained of: lack of legal representation; no witnesses or evidence presented during
trial; use of false accusations and false evidence; children are often given 14 days in
remand homes between hearings; they are not given sufficient time to explain their
cases; no one seems to understand their problems; children are often forced to admit
to an offence they have not committed; they are called bad names e.g. prostitutes.151
In Lagos, Nigeria the children complained of: not being given the chance to speak or
defend themselves; being held in handcuffs; not being allowed to reply to the police
statement; not being allowed to cross examine during proceedings in court and often
being compelled to confess to crimes under duress; often not being represented in
court by their parents as they had not been notified of their arrest.152
148 Children at a workshop in Mindanao,
Philippines, July 2002, quoted in UP CIDS PST,
149 Ibid, pp. 111-113 and 121.
Justice in Nicaragua, February 2004, p40.
151 USK / CRADLE / CSC End of Project Report,
2003.
152 HDI / CDC, Street Children and the Juvenile
Justice System in Lagos State, p. 93.
153 Human Rights Watch, Cruel Confinement,
2003.
104
Legal representation for children in detention, especially those such as street children
who cannot afford to pay for such services, is often lacking in practice, even if
available in theory. For example, according to a recent Human Rights Watch report on
Northern Brazil, although all of the young people they interviewed were aware that
they had legal representation, provided for under Brazilian law and usually provided
by the public defender, few had actually spoken with their legal counsel about their
cases. Typical comments included: "He never talked with me. He came to [the detention
center] once, but he just walked by. He didn't come to see me"; "I haven't seen him. He wasn't
at the court when I went”. Sir Nigel Rodley, in 2001 in his capacity as UN Special
Rapporteur on Torture, observed that "in many states public defenders . . . are paid so
poorly in comparison with prosecutors that their level of motivation, commitment and
influence are severely wanting, as is their training and experience.”153
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Case study
LEGAL ASSISTANCE FOR CHILDREN IN THAILAND: HUMAN
DEVELOPMENTFOUNDATION, BANGKOK
In addition to outreach, homes and shelters, Human Development Foundation set up
Thailand’s first legal aid clinic for poor children who are victims, witnesses, or who
are accused of a crime. HDF represents and counsels them during interrogations,
testimonies, and trials – over 1,600 cases in 2002. Approximately 80% of the cases
involving children in conflict with the law are drug-related due to the children’s
involvement in the high volume of local trade in amphetamines.
The following extract describes the experiences of six street boys, aged 8-14, testifying
in court as victims / survivors of a paedophilia and internet pornography case: “Court
was in a huge building. Try to imagine yourself eight or nine or ten and being taken into
one of the rooms to be questioned by five adults, most of them strangers. The adults
were all on their side, but that didn't seem to offer much comfort. It was still a strange
place with strange people asking questions you don't want to hear. Over and over and
over again, the social worker, the lawyer, and the others ask their questions, while two
television cameras record it all. The questions get very specific. "Did the man put his
wee-wee inside your bottom? Did he do it more than once?" The answers are often
non-verbal. Always there is a painful pause, followed by the fractional movement of
head or chin. The eyes are always dimmed by dishonour, the lips pursed or pressed
into a thin line that reveals the loss of face.
And so it goes, hour after hour, with occasional breaks while the other children wait
their turn outside, bored out of their skulls, finally falling asleep on the floor. At
midnight, we called it quits and the boys were led outside. Coincidentally, the bad
guy was being taken away by the cops at the same time. The boys looked at him. I
have no idea what they thought. The judge said he wanted to clear this case as
quickly as possible, so he scheduled another session the following week, when
maybe in another 12 hours of questioning, two more boys will finish the same grim
experience.
Back in the safe house, sometimes the younger boys cry. They try not to, because
there are 40 other boys there, too. And sometimes they fight and try to run away.
Sure, they're being treated fairly, probably for the first time in their lives, but it takes
a while to get used to that as well. We know that being with other surviving kids,
usually they help each other and, sometimes, they actually begin to heal themselves.
6
This, by the way, is as good as it gets for the kids when you're dealing with
paedophiles. This is a case where the system is on the kids' side, a hundred and ten
per cent. The judge is one of the best and the social workers have been trained and
they've through this countless times. They represent 200 children in court and in
police stations in Bangkok every month. It's a lot of work, and painful for the kids,
and usually the paedophiles get off, pay a huge "bail" and disappear, so it's easy to
wonder why so much time and effort and pain is expended.
There is an alternative, of course: we can ignore the problem, just walk away. There
are, after all, other fights to be fought and the kids can always go back to whatever
shacks they call home and to whatever abusing adults they call mom and dad or
grandma. Or back to [their Thai ‘friend’ in the slum who pimps them out], or
someone just like him, a type that always seems to skate free. Or right back onto
the street.” 154
In various countries there are legal provisions requiring the preparation of ‘social
enquiry reports’ by the probation or social services departments. These reports are
intended to examine the child’s background in order to assist the judge in choice of
sentencing options. However, due mainly to resource constraints, as well as the
difficulty of obtaining family information in relation to many street children who may
have severed such relationships, these reports are often not completed.
154 Father Joe Maier, Human Development
Foundation, Bangkok, Thailand, March 2003.
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Case study
BIO-PSYCHOSOCIAL STUDIES IN NICARAGUA155
According to the Nicaraguan Code of the Child and Adolescent, in cases where
deprivation of liberty is a possible sentence, the judge is required to order a ‘biopsychosocial study’ of the child, and for that he/she must rely on a specialized
interdisciplinary team. This study is critical in ensuring that the final sentencing
takes into account the child’s particular health, social and psychological situation.
However, at the time of writing, only the District Criminal Judge of Managua has the
required team established by law to carry out bio-psychosocial studies. In some
departments of the country the district attorney gets assistance from government
health institutions or non-governmental organizations that provide studies in this
sense.
Of 44 children’s case files from different regions reviewed by the Special Attorney
General’s Office for Children and Adolescents and Casa Alianza Nicaragua for this
project, the judge ordered the realization of the bio-psychosocial studies for only 10
cases - only 7 of which were actually carried out. It had not been ordered for 19
cases (44%). Of the remaining 15 cases, 9 had not yet started the process, one had
just begun, in one case the accusation was dismissed, 2 had an order for release,
and 2 were passed to a different jurisdiction. Failing to systematize the gathering of
bio-psychosocial reports in this way leaves children within the justice system at
greatly increased risk of inappropriate treatment and sentencing.
Of the 44 cases, 13.6% of the cases had been under trial for more than three months
without having issued a sentence. According to some of the judicial officials
interviewed, this delay was usually due to the time it takes to carry out biopsychosocial studies and the heavy caseload of the personnel involved (including
judges).
3.b) POSITIVE EXPERIENCES IN COURT
The questions asked by the judge were clear and
non-threatening. (PHILIPPINES) 156
Lawyers are allowed to defend and represent
children. (NIGERIA) 157
pp.111-112.
157 14-year-old girl at the National Workshop
on Street Children and Juvenile Justice, Lagos,
Nigeria, June 2003, quoted in HDI / CSC, Street
Children and Juvenile Justice in Lagos State,
2004.
106
In terms of the best case scenario in the Philippines, some child participants
described the atmosphere in the courtroom and the attitude of the lawyers as nonthreatening and that children were recognized as competent to testify; they were given
the chance to speak in court; they were judged based on evidence; they were allowed
bail; the judges did not even wear black robes; questions were stated properly during
the proceedings; in the cases where the judges did not speak the local dialect, the
children had been given interpreters; they were provided with good, intelligent, and
child-sensitive lawyers. Some of the participants said the “hearings were not slow.” In
Cebu, multi-disciplinary teams, composed of policemen, prosecutors and judges were
employed to minimize the trauma of multiple interviews with the children. The adult
participants meanwhile reported that judges who had received training on the rights
of children were already child-sensitive. 158
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Street children in Lagos, Nigeria, stated amongst their positive experiences of court
that “lawyers are allowed to defend and represent children,” whilst one of the juvenile
magistrates highlighted that children are allowed to speak in some juvenile courts and
the Office of the Public Defender has expressed a willingness to provide legal
representation for the children.159
Similarly, in Nicaragua, although the office of the public defender at present only
functions in the jurisdiction of Managua and in the north of the country, the following
examples of good practice cover both of these areas and apply especially to the capital:
in most cases, children beginning their trials make statements with the assistance of a
lawyer when appearing before the judge; public counsels for the defense are almost
always physically present in the court; the Public Counsel for the Defence (Managua)
signed an agreement with the National Police in order to interview detained
adolescents without major procedures or formalities, excepting the rigorous ones
referring to identification (although this does not allay the fact that the police still
need to allow more privacy during interviews and grant more time than the usual five
to ten minutes currently taken); the Criminal District Judge for Adolescents in
Managua respects the right to a private interview between the child and his/her
counsel for the defence before rendering his/her Interrogatory Statement.160
Casa Alianza Nicaragua also reports the following good practices of public defenders
and the Specialized Unit on Crimes Committed by Children and Adolescents of the
Public Ministry (specifically in Managua): the District Attorney’s Office has developed
high levels of coordination with the National Police, which – although some issues
remain unresolved – has helped to speed up processing; in Managua, there are two
district attorneys on shift, 24 hours a day, 365 days per year to whom the National
Police report any detentions of children; when a crime is not serious and the child
does not have a criminal record, the Public Ministry usually requests the Criminal
District Judge for Adolescents to apply a substitute measure instead of deprivation of
liberty.
INITIATIVES TO IMPROVE IMPLEMENTATION OF THE CODE FOR CHILDREN
AND ADOLESCENTS - JUDGES FOR ADOLESCENTS IN NICARAGUA
At the end of 1998, eight criminal district Judges for Adolescents (JFAs) were
appointed and have since accumulated substantial experience in the sphere of
specialized criminal procedures. Together with others, they have introduced a
number of initiatives with the intention of making the Code for Children and
Adolescents more efficient. These include the following examples:
PROJECT EXAMPLE
•
•
•
•
•
•
•
Some verbal hearings (e.g. in the North and Las Segovias regions) take place
outside the designated courtroom which speeds up the process and reduces
unnecessary delays;
Some JFAs have negotiated with the police to ensure that children being tried are
transported in separate vehicles to adults;
For less serious crimes, JFAs tend to release children on bail, and this has
helped reduce the number of children in detention, but only for those with family
contact and who can afford to stand bail (thus excluding a large number of street
children);
JFAs are explaining the process more systematically to the child and other
stakeholders and are enforcing journalistic restrictions to protect children’s
privacy and identity;
Some JFAs more than others are open to civil society assistance, particularly in
hearing concerns and petitions, and have attended seminars and workshops on
children’s rights;
Training workshops on the Code for Children and Adolescents have been provided
to different social sectors such as the police and local authorities;
The Specialized Inter-Disciplinary Teams responsible for bio-psychosocial studies
were given training to promote awareness, accessibility, patience, sense of
humour, and the ability to listen to what children have to say without judgment.
6
107
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ASSISTING CHILDREN IN THE IASI
, JUVENILE COURTHOUSE, ROMANIA
(Project initiated in March 2001 and coordinated by the Social Alternatives
Foundation and the Magistrates Association)
Problem: Insufficient adherence to, and respect for, national and international
standards regarding criminal trials involving children as both offenders and victims.
Solution: Creating the Juvenile Courthouse Iasi,
, a project which aims at:
1. Ensuring an optimal climate for hearing and judging cases involving children;
2. Building a team of specialists for processing and judging their cases;
3. Reducing the negative consequences suffered by children and their families
during the process.
Currently all cases involving children in the region have been diverted to the
Juvenile Courthouse, thus complying with Article 485 of the Criminal Procedure
Code.
Description of the project: In order to achieve its goals, the project undertook the
following activities:
–
PROJECT EXAMPLE
–
–
–
–
Refurbishing the Juvenile Court with adequate furniture, so that children can
feel more comfortable, and providing audio-video systems to allow for the
contribution of evidence without being in the actual court;
Creating an information leaflet outlining the proper investigation and judging
mechanisms for cases involving children, with details of social assistance
services offered by partner NGOs. These leaflets were given to children under
trial, their families and the public;
The training (through a series of seminars) of 33 specialists to carry out penal
cases with children (10 police workers, 8 prosecutors, 7 judges, 2 attorney, 4
social workers, and 2 psychologists). The objectives of this training were:
informing participants about the functioning mechanism of the Courthouse,
providing them with knowledge about emotional, physical and sexual abuse on
children, ways of identifying abuses, counselling services for victims and their
families, investigation techniques and rehabilitation methodology;
To ensure correct functioning of the Juvenile Courthouse, a Coordination
Committee was created, consisting of 2 representatives from each institution
involved in the project in order to establish a common strategy based on the
strategies of each institution and to find optimal solutions to implement the
project;
A second seminar was held focusing on child development psychology, and was
attended by police workers, prosecutors, judges and members of NGO partners
in the project. The objectives of this second seminar were: gaining knowledge in
the monitoring of child’s rights within the family and government institutions;
gaining knowledge regarding the negative consequences arising from abuse
and neglect.
Lessons learned:
• Legislative difficulties: Lack of legal framework to promote diversion in cases
with children; lack of procedures to avoid multiple interviewing of child victims; not
accepting video-audio evidence.
• Professional difficulties: Need to develop university and post-university
preparation in the field of juvenile justice and criminology; need to write some
practical manuals for police officers, prosecutors, judges and social workers
involved in the juvenile justice system.
108
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4) REINTEGRATION
4.a) GENERAL EXPERIENCES
As with the experience of trial, in general the children’s recollections of reintegration
following detention were remembered less clearly than their experiences on the street
and in detention. This may be explained by the fact that relatively few of them feel
that they have undergone any ‘reintegration’ at all as in most cases the revolving door
of the justice system has simply chewed them up and spat them back out onto the
streets again without any preparation and with even more resentment and alienation
from society than before. As seen above, detention – used so excessively throughout
the system, and often so unjustly as a knee-jerk reaction to ‘deal with’ street children,
regardless of whether or not they have committed a crime – only serves to reinforce
separation of the child from protective societal networks and in many cases increases
rather than decreases rates of recidivism. It is therefore not surprising that, given the
general lack of ‘restorative justice’ options available at earlier stages of the system, and
the lack of resources allocated to reintegration, that interventions at this ‘final’ stage
have so much ground to make up.
Theoretically there are provisions for aftercare, initiated
by the government, but practically it is very weak. The
whole aftercare system is very weak and therefore it does not
equip children to enter into mainstream life. (INDIA) 161
In their present appearance [Labour Education Schools]
are no place for re-education. We isolate children in
them, society gets rid of them. But, in fact, we place them in
conditions in which their rights are violated in a drastic way.
They become embittered. And I declare quite responsibly that a
person cannot possibly reeducated if his intellectual and physical
development is stunted and his dignity degraded.
6
(BULGARIA) 162
The largest proportion of Gypsy juvenile delinquents in
prison and reeducation centres face a high risk of
reconviction based on their illiteracy, poor job prospects and
discrimination in socio-economic choices. (ROMANIA) 163
161 Rita Panicker, Director, Butterflies, Delhi,
India in response to a Consortium for Street
162 Malena Filipova, of the Bulgarian Chief
Prosecutor’s Office, published interview, quoted
in Human Rights Watch, Children of Bulgaria,
1996, pp.68-69.
March 2002, p.204.
164 HDI / CSC, Street Children and the Juvenile
Justice System in Lagos State, 2004, p.94.
109
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There is a need to enlighten the public, including
voluntary and other organisations; also, there is a need to
encourage their involvement in rehabilitating children
and helping them to settle down in society. (NIGERIA) 164
We try to leave our experiences behind, but how can we
stop the discrimination that keeps hounding us?;
People condemned us and we had to endure it. There were also
children who were not given the chance to begin a new life. They
were killed by vigilantes after serving their sentences in jail;
My parents really took care of me after being released;
The way they look at me didn’t change. They still love
me. (PHILIPPINES) 165
In school, if you are introduced as a street child, the
stigma will never leave you. The teachers will never see
you in any other light. Anything that goes wrong in school you
are the one who is suspected. Even the teachers will test you by
leaving money in the house and sending you there. For example,
there was a time when I was ill, and weaker than the rest, but
the teacher still made me go running. She said ‘you’re not the
type to get sick’ just because I’m a street child. If you go
calling me ‘street child’ it will stigmatise me for the rest
of my life. (KENYA) 166
Justice System in Lagos State, 2004, p.94.
165 UP CIDS PST, Painted Gray Faces, 2003, p.
113.
166 CSC, Street Children and Juvenile Justice
in Kenya, 2004, p.15.
p.14.
Justice System in Lagos State, 2004, pp. 93-4.
110
Unfortunately, in many instances, children are simply not given the opportunity for
reintegration. For example, in Davao City in the Philippines, there have been serious
allegations that vigilante groups and informers (closely working with policemen and
reportedly with the local government) have actually murdered former children in
conflict with the law and that for this reason many children consulted as part of this
project in that area preferred to stay in jail. At the less extreme end of the scale,
children reported that they are the first to be apprehended if found near a crime scene,
even if they are innocent.167
Children in Lagos, Nigeria indicated how detention had failed to prepare them for
mainstream society, indicating that: the vocational and educational preparation in the
institutions are inadequate; government and private sponsors should do more for
detained street children; foster parents should be provided for children who cannot
trace their parents, rather than detaining them in homes; many children prefer reintegration into their own families where possible and that financial support should be
provided to parents.168
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Likewise, street children in Kenya highlighted the stigma they face which is fuelled
by public discussion forums in the national press that reflect and promote harmful
discrimination against street children such as reflected in this negative press report:
‘[street] children must first undergo social rehabilitation before being integrated into
public schools. They are hard-core youngsters used to all manner of crime, and they
can poison the minds of other children.’169
4.b) POSITIVE EXPERIENCES WITH REINTEGRATION
The country which examined the issue of reintegration in the most detail was the
Philippines. Consultations with children throughout the country revealed a wide
range of individual experiences, both positive and negative, but the positive
experiences include: a social worker visited them in their homes to know their
situation; the police implemented community programmes for children like sports
festivals; their families received assistance from local officials; they were accepted by
family, friends and neighbours. Civil society organisations play a huge role in reintegration.
As with the other stages of the system, the key to reform lies in sensitization to
overcome discrimination at individual and societal level, combined with proactive
efforts to re-build and strengthen social and community relationships. This in turn
benefits not only the individual children concerned, but also the community as a
whole:
“The medium and long-term benefits of successful reintegration and restoration
are the strengthening of civil society and the enabling of young citizens to
accept their full part in community rather than becoming a drain on it.” 170
169 Opinion voiced in ‘The Cutting Edge’
column, Daily Nation, 10 January 2003.
170 Giles, Prof. G.W., Turbulent Transitions,
2002, p.277.
6
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Chapter summary
The overwhelmingly negative experiences of girls and boys in the injustice
system illustrate how, apart from relatively isolated examples of reform, the
justice system is in general:
Operating in direct contravention of the umbrella rights of the CRC – i.e. it is not
acting in the best interests of the child; it is actively discriminating against poor
children; it is failing to provide spaces and opportunities for children to
participate in decisions affecting them; it is woefully lacking in desperately
needed political will and allocation of resources to ensure its effective and childfriendly functioning; and it is in many cases violating the most fundamental of
all child rights – the right to survival and development. In other words, it has
dramatically failed the ‘table leg test’ introduced in Chapter 2: the ‘table’ is far
from ‘stable’.
Furthermore, the current system is:
• Failing to take into account the individual needs, circumstances and opinions
of girls and boys;
• Failing to work with children to develop more sustainable interventions
based on expanding the limited choices and non-choices currently available
to them as a way to break the ‘revolving door’ cycle of life on the streets or
in detention;
• Failing to capitalise on the potential of children’s resiliency and their peer
relationships to contribute positively to their development.
It is interesting to note, however, that – in line with the approach to reform
outlined in this book - the limited examples of more positive experiences
illustrate the positive power of relationship building and the importance of the
role of the community.
These findings relate to the first two aspects of the three-part framework for
reform outlined in Chapter 2 (the rights-based approach and the five key
themes). The following chapter examines part three in more detail: the need to
break the revolving door cycle of negative experience through interventions in
the four priority areas of prevention, separation of criminal justice and social
welfare systems, diversion and alternatives to detention.
112
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7
PRIORITIES FOR INTERVENTION
Chapter summary
Explains the four key priority areas for reform, illustrated by case
studies and project examples:
•
•
•
•
Prevention
Separation of criminal justice and social welfare systems
Diversion
Alternatives to detention
BREAKING THE ‘REVOLVING DOOR’ CYCLE: ENTRY
POINTS FOR INTERVENTIONS
Based on the testimonies of girls and boys in the previous chapter, it is evident that
urgent reforms are needed to end human rights violations in the existing system - on
the streets, in detention, and in court.
Some project examples and achievements in these areas have already been
detailed in the sections of the previous chapter on positive experiences. This chapter,
however, for reasons of policy emphasis, will concentrate more on the four longer
term priority areas outlined below, rather than specific interventions to improve
conditions in the courtroom and in detention. The ideal entry points for each of these
interventions are illustrated in the following diagram.
•
•
•
•
Priority
Priority
Priority
Priority
1:
2:
3:
4:
7
Prevention
Separation of criminal justice and social welfare systems
Diversion
Alternatives to detention
This chapter considers each of these priority interventions in turn. Appendix
5 uses the example of Uganda to give an overview of what a comprehensive reform
programme, inclusive of these priorities, might look like in practice.
Chapter 7: Priorities for Intervention
113
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PRIORITY 1: PREVENTION
WHAT IS IT?
Prevention attempts to “anticipate risk and put in place actions considered likely to
reduce the likelihood of the onset of difficulties, rather than respond to needs only
when such difficulties have clearly arisen.”1 In the context of street children in the
criminal justice system, prevention can be considered in two stages:
1a) Prevention of street migration (i.e. preventing children from leaving their
homes and communities of origin in the first place);
1b) Prevention of first time and re-offending (i.e. prevention of street children
becoming involved in the criminal justice system once they are already on the streets).
1 Consortium for Street Children and University
College Cork, Prevention of Street Migration:
Resource Pack, 1999, p 7.
3 Cappelaere, G., ‘Juvenile Justice 10 years
after the Convention on the Rights of the Child
(CRC): Some Reflections for Hopeful
Perspectives’, in Butterflies, My Name is Today,
Vol. X., No. 2, Special Issue: ‘Children in Conflict
with the Law’, 2003, pp.20 and 21.
114
The causes of girls and boys offending are wide ranging and complex, and include
poverty, broken homes, lack of education and employment opportunities, peer
pressure, exploitation by criminals and lack of parental guidance. These causes
need to be tackled with a range of gender-sensitive social and economic
interventions, including programmes for education, poverty reduction, skills
development, psychosocial interventions, parental counselling and job creation.2
In addition to this background ‘developmental’ prevention work, there can also be
programmes that are aimed towards more specific ‘risk’ situations, i.e. that are
‘responsive’ and aim to prevent events taking place that are particularly likely to
happen, or to prevent re-occurrence of those which have already happened.
As previously outlined in the section on child rights, it is important to adopt a holistic
approach in relation to prevention work: “Respect for all children’s rights [is] the best
prevention of juvenile delinquency. […] The international framework has been an
inspiration in some countries in attempts to introduce human rights in crime
prevention policies. In these countries, prevention of juvenile delinquency is part of
overall development policies rather than a very specialized and isolated activity.”3
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PREVENTION OF STREET MIGRATION AND PREVENTION OF FIRST TIME
AND RE-OFFENDING:
1)
DEVELOPMENTAL PREVENTION
Examples of national and international developmental protection
Broad development prevention at national and international level attempts to address the
large scale, deep-seated reasons for the creation of social problems. Very little work has
been done on monitoring and evaluating the impact of macro-economic and socioeconomic policies on marginalised groups such as street children, or the specific links
between improved macro socio-economic conditions and reduction in youth offending.
Furthermore, this broad based form of prevention is difficult to implement and most
often needs to be broken down into more manageable programmes such as national
education policies and initiatives to reduce the harmful effects of rural to urban
migration. An example of international level developmental prevention would be reform
of unfair international trade rules to promote developing country economic growth.
Examples of community level developmental prevention
Based on the same concept as national and international prevention, but implemented
at a local level, community level developmental prevention focuses on the factors that
contribute to community poverty and breakdown and, in turn, high rates of street
migration and / or youth offending. Obviously these are complex issues involving long
term investment. However, the benefits of such programmes - which aim to
strengthen protective factors and to minimise risk factors - can be seen in the following
examples from Brazil and Ethiopia. Many street children projects are increasingly
incorporating prevention into their scope of work. However, difficult decisions often
need to be made in order to balance longer term prevention work with urgent and
short-term survival and protection programmes for children already on the street
and/or in the criminal justice system. In these situations, although there are no easy
answers, collaboration is especially important at the local level between organisations
with different specialisations.
Case study
BRAZIL: EXPERIENCES OF PREVENTION: ASSOCIAÇÃO DE APOIO À
CRIANÇA EM RISCO (ACER), CHILDREN AT RISK FOUNDATION 4
One NGO in Brazil, ACER, describes the shift in its work with children from direct
street work in São Paulo in 1993, to responsive and developmental models of
preventative work in the impoverished community of Eldorado (on the outskirts of
São Paulo) in order to prevent children migrating to the streets in the first place. By
2000 ACER was no longer working directly with children living on the streets.
7
Current goals, aims, objectives and philosophy: To prevent children within the
community of Eldorado from migrating to the street; to break the cycle of
intergenerational family dysfunction which is a significant factor in precipitating this
migration; to reduce the prevalence of violence within the community and
particularly its effects on young people; to strengthen the ability of children and
young people to form and maintain meaningful social relationships; and to increase
their positive participation in the community. It does this though an educational
methodology that develops children’s cognitive, emotional and social communication
skills. ACER’s approach is child-centred – it prioritises the needs and rights of the
child within the family, rather than the needs of the family as a whole, and works to
advocate these needs and rights within the family and the community.
Prevention work: What is it and how do you evaluate it? The question of who is at the
highest risk of moving to a life on the streets is critical to effective prevention work and
ACER believes the key to success lies in accurately identifying, targeting and accessing
4 Based on Kortschak, A., ACER’s Work in
Brazil, Diadema – Brazil, 22 September 2003.
115
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high-risk children within the community. This is achieved through ACER’s strong, active
and respected presence in the community and the ability of ACER educators to come
into contact with children in a range of circumstances and situations.
Challenges and successes: Acknowledging the challenges they face in this work,
ACER is in the process of consolidating their existing work, looking at ways to
reduce the case load of educators from a ratio of 1:50 to 1:20, and strengthening
their methods for assessing the needs and progress of each child they assist (based
on dialogue with another NGO with extensive experience in the field of prevention of
street migration - JUCONI Ecuador 5).
One of ACER’s major successes has been in reducing levels of violence within the family
and home, between the police and young people, between rival drug dealers and
generally on the street. ACER is seen as a safe place that young people from the
community as a whole can access - family members of rival drug gangs use ACER
without problems and there have never been any violent incidents at the fortnightly
Sabadão, an event regularly attended by over 200 young people. By teaching and
modelling a philosophy where children and young people are valued and respected and
problems are resolved through dialogue and negotiation rather than violence ACER offers
a real alternative to entrenched dysfunctional patterns of relating within the community.
PROJECT EXAMPLE
PREVENTION PROGRAMME FOR STREET CHILDREN
IN ADDIS ABABA, ETHIOPIA
2)
The prevention programme focused on the community and socio-economic factors
that result in families living on the streets. In order to address these causes Save
the Children and Forum for Street Children, Ethiopia established a credit and
savings scheme for mothers to establish income generation activities. They also
provided school fees for specifically identified young people and supplied a tutorial
support programme to help children with schoolwork. All of these activities were
designed to prevent families from having to live on the street and to support
community growth and empowerment. 6
Responsive prevention
Responsive prevention determines when children are most at risk and seeks to
support them and provide them with alternatives, thus implementing the ‘choice’
strategy outlined in Chapter 2 (understanding and expanding choices and then
empowering children to make those choices). In a subtle difference to ‘developmental
prevention’, responsive programmes do not necessarily seek to address the root causes
of the high-risk situation but rather to deal with that situation in a way that prevents
the undesired outcome from coming to fruition. The most successful prevention
programmes will therefore have some element of both developmental and responsive
prevention in order to address both root as well as ‘branch’ causes.
6 Ibid.
The UN Guidelines on the Prevention of Juvenile Delinquency (Riyadh Guidelines)
cover both of these types of prevention and encourage a positive emphasis on socioeconomic support and upgrading quality of life rather than a ‘negative’ crime
prevention approach. As outlined in Chapter 3, they cover virtually all social areas
such as family, school, community, media, social policy, legislation and juvenile
justice administration.
116
5 Junto con los Niños (JUCONI) operates in
Mexico and Ecuador. For further details of their
prevention work, see www.juconi.org and CSC /
UCC, Prevention of Street Migration, 1999.
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Examples of responsive prevention programmes are given below and include:
•
•
•
A residential street children project (Romania);
An under-5 early childhood development and family support programme which
demonstrates the importance of early intervention with high-risk children (USA);
A creative project to encourage school attendance and to prevent motor-related
crime in relation to first time offending and re-offending (UK).
REDUCING NUMBERS OF CHILDREN IN CONFLICT WITH THE LAW –
CLUJ-NAPOCA RESIDENTIAL CENTRE, ROMANIA
PROJECT EXAMPLE
Problem: The efforts made by local authorities in Cluj district to reform the child
rights protection system and assist street children have proved to be insufficient
due to a lack of funding, coherent policy and the absence of any real collaboration
between the actors involved. This has led to large numbers of children on the street,
whose poverty and lack of identity documentation brings them into constant
conflict with the local law enforcement agents.
Solution: To try to solve the ballooning street children problem in Cluj-Napoca, the
Prison Fellowship Romania Foundation initiated a project called “the Residential
Centre for Street Children.” The centre itself is a building given to the Foundation
rent free for 20 years by the local council, and now operates as a busy hostel for
street-working and street-living children to use.
Specific objectives of the centre: The centre offers shelter to up to 50 children
permanently living on the street, and prepares them for social and familial
reintegration through building their self-identity and confidence. It provides
material support and assistance to potential foster families, and works to change
the attitude of the community of Cluj towards homeless children.
Lessons learned: A year and a half after the centre opened, the fluctuating
movement of children in and out of the centre had noticeably reduced, with most of
the initial beneficiaries successfully integrating into the programme rather than
returning to the street. However, there were naturally difficulties in reintegrating
those children who had never attended school into the formal educational system.
Restoring relationships with family members where desired has also been difficult,
but there are some positive and encouraging results, with many of the identified
families declaring themselves available to assume responsibility for raising their
children after they finish the programme (2 years of residence in the centre). The
range of activities in the residential centre (shows, community work, sports
contests, painting etc.) have also all helped to sensitize the local community to
become more sympathetic to street children and to their difficulties.
7
PROJECT EXAMPLE
EARLY INTERVENTION: THE PERRY PROGRAMME – DETROIT, USA 7
This longitudinal study proves that prevention of offending can be achieved through
intensive investment in vulnerable children at a very early age (preferably under 5).
The Perry Programme offers highly structured pre-school activities for children in a
deprived community near Detroit. In addition to the centre-based educational
programme, family support visits are also made. Children in this programme were
monitored from the 1970s to the 1990s up until the age of twenty-seven and were
found to be a fifth less likely to have suffered repeat arrests (five times or more)
than a carefully matched control group. Although this type of support is expensive,
it is expected to pay back $7 for every $1 invested.
7 NACRO 1996, cited in Petty, C. and Brown, M.
(eds), Justice for Children: Challenges for Policy
and Practice in Sub-Saharan Africa, Save the
Children, June 1998, pp.16-17.
117
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Example of a responsive prevention programme specific to the prevention of first time
offending and re-offending:
ILDERTON MOTOR PROJECT (IMP),
SCHOOL OUTREACH PROGRAMME, LONDON, UK 8
PROJECT EXAMPLE
Aims: To reduce the incidence of motor vehicle crime such as joy riding, vehicle
theft, and vandalism (which account for a high number of offences involving streetinvolved youth in the UK) by creatively capitalising on the enthusiasm young people
have for motor vehicles in a programme that enables young people to be exposed to
mechanics and responsibilities that go along with motor vehicles while also
providing a reason to stay in school.
8 As part of the CSC International Workshop on
Street Children and Juvenile Justice (14-18 July
2003), a group of 12 overseas visitors from
CSC’s juvenile justice project partner countries Romania, Nicaragua, Nigeria, Kenya, Pakistan
and the Philippines – conducted a field visit to
IMP. All participants found the visit useful and
many said that they had picked up ideas to take
back to their own countries and projects. For
example, based on the IMP experience: one
participant from the Philippines will be
introducing a safety briefing and quiz into his
own NGO’s mechanics project; and one of the
participants from Pakistan indicated an interest
in exploring the possibilities of working with
local mechanics to establish a mentoring /
vocational training / apprenticeship scheme for
the street children he works with.
118
Project description: The IMP School Outreach Programme is targeted at young
people who have an interest in motor vehicles and have difficulty succeeding in
school. Once a week, young people attend a motor vehicle training course that is
incorporated into their school curriculum. Participation in the programme is
contingent on attendance in regular classes and as a result children stay in school
largely because they want to and are interested in the motor vehicle course. In
addition to preventing first-time offending, participation in IMP programmes can
also be stipulated as a sentencing option for children referred by Youth Offending
Teams (YOTs) as part of the formal justice system, with a view to reducing reoffending. In addition to the School Outreach Programme, IMP also runs the
following programmes: Basic Motorbike Training; Schools Crime Awareness
Programme – targets younger children ages 8-12 with a focus on crime prevention
and dealing with transitional issues between primary and secondary schools (to
prevent drop-out / truancy); Creative Arts Programme – a ‘short burst programme’
lasting an average of 8 hours e.g. recycling old car tyres into plant holders for
donation to the community (e.g. retirement homes); Intensive Supervision and
Surveillance Programme –Saturday programme targeted at persistent offenders
who are not in a custodial setting.
Strengths:
• The project targets specific, high-incidence offences (related to motor vehicles)
through creative programmes that pro-actively engage, rather than prohibit,
individual young people in their area of interest. It confronts the specific context
of negative, anti-social behaviour (car crime) and turns it into a vehicle for
teaching responsibility, decision-making and other life skills.
• The young people themselves are involved in deciding and imposing sanctions
for misdemeanours committed by peers in the programme.
Challenges:
• The completion rate for those who start the programme is only 44%. The main
reasons identified for drop out are: transfer of pending court cases to another
jurisdiction; participants go back to school or move away from the area; lack of
commitment.
• 90% of the young people referred by YOTs work with a minimum of 2
organizations intended to give as much holistic support as possible e.g.
different groups for mediation, drugs and sentencing programme. However, it
has been queried as to whether this is really effective or whether the separation
of services results in a duplication of efforts and a non-holistic approach which
fails to address the specific needs of the child as a whole.
• Parents are invited to attend but there is no direct outreach programme to
parents nor incorporation of them into the services.
• Stigma against those with a criminal record hinders job placement and
reintegration into the community necessitating community sensitisation and
local involvement in the project.
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CHALLENGES OF PREVENTION WORK
Evaluation statistics: One of the main challenges in any prevention programme is
the difficulty in producing tangible evaluation statistics – i.e. the difficulty in proving
that a programme prevented something from happening. This, combined with the
need for a longer term perspective in which to see visible results, impacts on political
will and funding to support such programmes. In a context of limited resources and
multiple problems, there is a natural tendency to throw money and effort at the most
visible and immediate challenges, often at the expense of prevention work.
Extensive inter-agency cooperation and collaboration: This is illustrated by the
Ilderton Motor Project example above which expressed concern about the
fragmentation of services for vulnerable children, as well as the following observation
from Romania that “The lack of coordination of services provided by nongovernmental organisations made their interventions overlap or, by granting supplies
in the streets, even favoured the phenomenon.”9
Shifting urban communities: In relation to developing effective crime prevention
strategies in Africa, for example, “The challenge […] will be to develop a crime
prevention strategy that draws on the limited funds available but capitalises on the
strengths of urban communities. Strategies will need to be multi-faceted and to take
into account the role of all key agencies in society including the state, NGOs […],
churches, community associations and the media. They will also need to aim for a
closer and more detailed understanding of the problem in each community and
identify agencies that are best placed to offer improved opportunities to the young. […]
Although academics, lawyers and other interested parties are making some headway
in theoretical discussions about crime prevention in urban Africa, practical policies
are still a long way from being implemented.”10
Need for much greater involvement of children and young people themselves
in the design and implementation of prevention programmes to ensure that they are
appropriate, effective, stakeholder-owed and sustainable.
PRIORITY 2: SEPARATION OF CRIMINAL JUSTICE
AND SOCIAL WELFARE SYSTEMS
‘Juvenile justice’ in Guatemala suffers from multiple and
severe defects, rendering it less than justice and little
more than warehousing. Street children are arrested and locked
up arbitrarily, sometimes merely for being homeless, other times
for such vague offences as ‘creating a public scandal,’ or
‘loitering.’ (GUATEMALA) 11
‘Separation’ of the criminal justice system and the social welfare system does not
mean that social welfare departments should not be involved in the handling of
children in conflict with the law. It means rather that children who are not in conflict
with the law (i.e. children in need of care and protection) should not be being
processed through the criminal justice system. It means putting an end to the
‘warehousing’ of girls and boys simply because they are poor. There are five factors
which combine to cause immense confusion in many countries between criminal
justice and social welfare systems:
1.
Criminalisation, stereotyping and discrimination against street children:
prejudiced and mistaken assumptions that all street children are criminals can result
7
9 ASIS and Consortium for Street Children,
Street Children and Juvenile Justice in
Romania, February 2004, p50.
Children, 1998, p. 45.
Children: Police Violence and Abuses in
Detention, July 1997, p.1.
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in them automatically being processed through the criminal justice rather than the
social welfare system. This is based on a failure to distinguish between the individual
circumstances of particular children.
“
The system of
sending our children
into a process which
is misleadingly being
termed as ‘safe
custody’ may be
analogous to the
situation where one
is being asked to
plunge them into a
shark-infested ocean
to keep them out of
reach of those very
predators. This may
seem to be a very
harsh judgement on
the system, but the
stark fact is our legal
canopy is too thin,
the government
machinery too
oblivious, and the
non-government
apparatus too
inadequate to deal
with this acute, if not
massive, human
predicament.
“
(BANGLADESH)
Page 120
12
2
Outdated legislation which criminalizes poverty: criminalisation of survival
activities such as ‘vagrancy’, begging and being the victim of commercial sexual
exploitation puts children in need of care and protection into the clutches of the
criminal justice rather than the social welfare system.
3
Lack of social welfare infrastructures and resources, both human and
financial, results in children in need of care and protection being warehoused in
the criminal justice system in the face of lack of more appropriate social welfare
alternatives.
4
The inherent complexity of the ‘juvenile justice non-system’ itself: the
overlapping systems, often with conflicting political agendas, lack the
coordination and resources necessary to deliver an effective, efficient and holistic
service in the best interests of the child. In this non-system, poor coordination
between (e.g.) social service departments and the police can result in children
languishing unnecessarily in detention due to lack of monitoring.
5
The complex interplay between the causal factors of street migration,
survival strategies whilst on the streets and street children’s subsequent
involvement with the criminal justice system as examined in Chapter 4
means that street children may well fall into more than one category:
Children in actual conflict with the law
Children in perceived conflict with the law
Children in need of care and protection
•
•
•
Guatemala: “Children in protective custody are incarcerated together with juvenile
offenders. Thus, children who were raped or beaten by their parents, children who were
found in a malnourished state, runaways, even some children with physical disabilities, are
thrown into the same dreary facilities as are drug addicts, pickpockets, prostitutes and
violent offenders.” 13 The directors of facilities in Guatemala are not even told by the
courts the reason for any particular child’s incarceration, so in truth there is no
differential treatment for offenders and dependent children. 14
India: the Juvenile Justice (Care and Protection) Act, 2000 applies to both children in
conflict with the law as well as children in need of care and protection. “Often, a very
thin line separates such children from juvenile violators of the law”. 15
Kenya: “Whereas most of the children who end up in remand homes are welfare cases, the
way they are treated by the staff at these institutions depict them as criminals. According to
the children, the assignments that they are given are more punitive than corrective. Children
reported that they were being kept under very strict rules and are in some cases locked in
hostels for the whole night. For some, they are locked in as early as 6.00 p.m. in the evening
till 6.00 a.m. Corporal punishment is a common occurrence in these institutions”. 16
The following statistics in relation to ‘charges’ taken directly from the Juvenile Court
Register in Nairobi, Kenya17 speak for themselves:
12 Zaman Khan, S., Herds and Shepherds: The
Issue of Safe Custody of Children in
Bangladesh, Bangladesh Legal Aid and Services
Trust (BLAST) and Save the Children UK, June
2000, p.46.
14 Ibid, pp.61-62.
15 Tandon, S.L., ‘Fettered Young: Children in
Conflict with the Law and Children in Prisons’ in
My Name is Today, Vol. X., No. 2, Special Issue:
‘Children in Conflict with the Law’, 2003, p.11.
16 CRADLE / CSC, End of Project Report, 2003,
p. 21.
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FEBRUARY 1998
‘CARE AND
THEFT
PROTECTION’
HOUSE
BREAKING
POSSESSION
OF DRUGS
OTHER
TOTAL
Boys
110
12
2
2
19 18
145
Girls
18
2
1 19
21
Total
128
14
(77% of total)
2
2
20
166
HOUSE
BREAKING
POSSESSION
OF DRUGS
OTHER
TOTAL
1
1 (GBH)
61
NOVEMBER 2001
‘CARE AND
THEFT
PROTECTION’
Total
52
7
(85% of total)
JANUARY 2002
‘CARE AND
THEFT
PROTECTION’
HOUSE
BREAKING
POSSESSION
OF DRUGS
OTHER
TOTAL
Boys
51
5
3
2
7 20
68
Girls
5
1
Total
56
6
(76% of total)
6
3
2
7
74
It would therefore appear that for most street children, arrest comes simply as the
result of being poor and being in the wrong place at the wrong time. A 2002 report by
the governmental Standing Committee on Human Rights (SCHR) in Kenya expressed
concern at the huge numbers of street children who were being kept in juvenile
remand homes as ‘victims of neglect’ or ‘in need of care and discipline’ – as many as
797 out of the 1016 in detention were street children in this category being forced to
cohabit with others charged with more serious crimes.21
17 Examples taken by CSC from the Juvenile
Court Register, Nairobi, Kenya, for the period
Feb 1998 – Jan 2002.
18 Dumping and creating litter x 16; Drunk and
disorderly x 1; Conveying stolen property x 1;
Grievous harm x 2; Possession of an offensive
weapon x 1; (NB some individuals were charged
with more than one offence).
19 ‘Being unlawfully present in Kenya’.
The following two cases studies from Nigeria and Egypt illustrate the confusion
between the criminal justice and social welfare systems.
20 Possession of an offensive weapon x 1;
‘Defilement’ (sex with someone under the age
of 14) x 2; ‘Creating a disturbance’ x 1;
‘Preparing to commit a felony’ x 2; Conveying
stolen property x 1.
21 Quoted in U.S. Department of State, Kenya
Country Human Rights Report 2002, 31 March
2003.
7
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Case study
CHILDREN ‘BEYOND PARENTAL CONTROL’ AND
‘IN NEED OF CARE AND PROTECTION’ - NIGERIA 22
According to research by the NGO Human Development Initiatives as part of the HDI /
CSC Street Children and Juvenile Justice Project, in March-April 2003, 60% of
children detained in the Boys’ Remand Home, Oregun, Lagos were non-criminal
cases (of which 55% were boys ‘beyond parental control’, 30% were care and
protection cases (‘found’ children) and 15% were children who had been rounded up
in Task Force street raids). Likewise, 80% of girls detained in the Girls’ Remand
Home, Idi-Araba were non-criminal cases, i.e. ‘beyond parental control’, and ‘care
and protection’ and civil dispute cases.
‘Beyond parental control’
Under Section 29 of the Children and Young People’s Act of Nigeria, children deemed
to be ‘beyond parental control’ may be detained in an approved school for up to
three years, or in a borstal for up to five years. It is observed that some parents or
guardians arrange for their children to be institutionalized in remand homes in order
to abandon them and abdicate their responsibility towards them. Criminalizing and
detaining children for being ‘beyond parental control’ is not in the best interests of
the child. It is also a gross abuse of the justice system and should be immediately
stopped.
‘In need of care and protection’
Children ‘in need of care and protection’ in Lagos are referred by juvenile court
remand warrant to remand homes and approved schools via police stations, Task
Force raids, or the two police ‘Juvenile Welfare Centres’ at Alakara and Adeniji Adele
for ‘lost and found’ children. Conditions in these centres are described as being so
bad that they are unfit for human habitation. Staff are untrained and lack the
resources with which to work. For example, ‘lost’ / street children are currently held
in unacceptable conditions for up to 2 months at Alakara Juvenile Welfare Centre
whilst awaiting family tracing and/or judicial processing. Children as young as 2
years old (occasionally even younger) spend a significant portion of the day in a
dark and crowded cell (approximately 10 feet square). There is no running water
and toilet facilities consist of relieving oneself in the small wasteland that surrounds
the cell. Up until now, the Juvenile Welfare Centre has depended mainly on donations
from the local community (especially churches) for its general running expenses and
equipment. Attempts are made to trace their families. If this also fails they are taken
to a juvenile court for referral to a remand home where they may stay for several
years until the child’s parents, guardian, or relations are located.
NIGERIA: ‘Lost and found’
children at Alakara ‘Juvenile
Welfare Centre’, Lagos, Nigeria,
June 2003. (Faces have been
obscured to protect identities).
It is very important to note that in this category are children who have spent up to
two years wasting away in the homes while efforts are made to locate parents or
guardians, dependent on the information extracted from the children. Some children
are too young to remember such information correctly. Others are very reluctant or
fearful to talk to the authorities and some deliberately refuse to disclose any fact
that could help in tracing their parents because they do not want to return home. It
is also worth noting that many children run away from home due to physical,
psychological and/or sexual violence and abuse. As such family reunification may
well not be in the best interests of the child. However, under the current system,
there are very limited options available for such children.
22 Compiled from Human Development
Initiatives and Consortium for Street Children,
Street Children and Juvenile Justice in Lagos
State, February 2004 and the author’s notes,
Lagos, October 2002 and June 2003.
122
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Case study
‘VULNERABLE TO DELINQUENCY’ OR ‘VULNERABLE TO DANGER’:
AN EXCUSE FOR POLICE ROUNDUPS - EGYPT 23
Human Rights Watch reports that Egyptian police routinely arrest and detain
children they consider ‘vulnerable to delinquency’ or ‘vulnerable to danger,’
categories ostensibly to protect vulnerable children, but which have become a
pretext for mass arrest campaigns to clear the streets of children, to obtain
information from children about crimes, to force children to move on to different
neighbourhoods, and to bring children in for questioning in the absence of evidence
of criminal wrongdoing.
The number of such arrests has sharply increased since 2000. There were more than
11,000 arrests of children on these charges in 2001 alone, accounting for one
quarter of all arrests of children in Egypt that year. 24
Egyptian law does not effectively distinguish between children who have committed
criminal offences and children who are in need of protection. Chapter Eight of
Egypt’s Child Law 12 of 1996, entitled “The Criminal Treatment of Children,” allows
police to arrest any child under eighteen for a wide variety of activities. Some of
these activities, including being habitually absent from school or suffering from
mental illness or diminished mental capacity, are “status offences” that would not
constitute crimes if committed by adults. Others, like being homeless, begging, or
practicing or working for those involved in prostitution, gambling, or drugs, are
clear evidence that a child is in need of special protection and assistance from the
state. 25
Prostituted children
A particular category of children - of particularly relevance to street children - is worth
mentioning in relation to the current confusion between criminal justice and social
welfare systems: that of prostituted boys and girls. Reaffirming the need to protect and
promote the interests and rights of the child to be protected from all forms of sexual
exploitation, the Yokohama Global Commitment 2001 stressed the reinforcement of
“efforts against the commercial exploitation of children, in particular by addressing
root causes that put children at risk of exploitation, such as poverty, inequality,
discrimination, persecution, violence, armed conflicts” etc. It furthermore called for
the reinforcement of “action to criminalize the commercial exploitation of
children in all its forms and in accordance with the relevant international
instruments, while not criminalizing or penalizing child victims” [emphasis
added]. However, it is unfortunately the case that in many countries victims of
commercial sexual exploitation are the ones arrested while their abusers go free. In
the Philippines, for example, “while substantial gains have been made in Philippine
laws, particularly the passing of RA 7610, children in the commercial sex industry are
still viewed as criminals. The government needs to concretely address the root causes
that bring children into difficult circumstances, denying them their economic, social,
cultural, civil and political rights.”26 The children’s experiences of sexual abuse on the
streets and in detention are detailed in Chapter 6.
Need of Protection, February 2003
24 Ibid, p.3.
25 Ibid, p.8.
Quezon City, UP CIDS PST and CSC, 2003, p.93.
123
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PROJECT EXAMPLE
POLICE HANDBOOK ON THE MANAGEMENT OF CASES OF CHILDREN IN
ESPECIALLY DIFFICULT CIRCUMSTANCES – PHILIPPINES 27
A police handbook and educational posters were developed as part of a project on
the orientation and training of police officers on dealing with children in especially
difficult circumstances - conducted jointly by the Department of Social Welfare and
Development, the National Police Commission (NAPOLCOM) and the Philippine
National Police (PNP). The 1993 police handbook, based on the principles of the
UNCRC, Beijing Rules and domestic legislation and guidelines in place in the
Philippines, is intended for use by police officers who are designated to deal
specifically with children - as envisaged under the guidelines circulated by the
government in October 1992 directing all police stations in ‘highly urbanised areas’
to establish a Children and Youth Relations Section and all other police stations to
designate a Children and Youth Relations Officer. 28
The handbook (and posters) clearly separate the guidelines and procedures that
apply to:
- Protection of children;
- Management of a child as the accused;
- Management of the child as victim or complainant and as witness (which includes
the category of street children amongst others).
Under this last category, it sets out general and detailed guidelines on how to
handle abused / exploited children, neglected children (including street children),
and abandoned / foundling children.
Practical tips
STEPS NEEDED TO FACILITATE SEPARATION OF CRIMINAL JUSTICE
AND SOCIAL WELFARE SYSTEMS
Case studies, testimonies and statistics taken from court records illustrate the extent
to which the majority of children in some countries should not even be in the criminal
justice system in the first place. The gross abuses which occur as a result of the
failure to separate social welfare from criminal justice systems justify why the
separation of such systems has been listed in this publication as one of the four main
priorities for reform (along with prevention, diversion and alternatives to detention).
Such separation entails:
1. Strengthening social welfare departments through:
•
adequate resourcing of traditionally under-funded social welfare
departments, including: investment in personnel, training, infrastructure,
transport;
•
government acknowledgment of the importance of social welfare and
political will to invest at national and local government levels;
•
NGO lobbying for implementation of the above.
2. Improving cooperation and collaboration between the two systems to ensure
that vulnerable children in need of care and protection do not mistakenly get caught
up in the wrong system, and to improve provision of social services to children who
are in conflict with the law within the criminal justice system.
27 Police Handbook on the Management of
Cases of Children in Especially Difficult
Circumstances, Department of Social Welfare
and Development, National Police Commission
and Philippines National Police in cooperation
with UNICEF, Quezon City, Philippines, 1993.
28 Memorandum Circular No. 92-010, issued
by Department of the Interior and Local
Government, National Police Commission,
Makati, Metro Manila, 22 October 1992.
124
3. Ensuring that justice system personnel such as the police are sensitised
and trained to distinguish between different categories of children (in actual
conflict with the law, in perceived conflict with the law and in need of care and
protection) and are able to correctly channel children into the appropriate system, as
illustrated by the example of the police handbook and posters in the Philippines.
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PRIORITY 3: DIVERSION
WHAT IS IT?
Diversion means ‘diverting’ children in conflict with the law away from the formal
criminal justice system, and in particular away from formal court processes (through
pre-trial diversion and informal / alternative sentencing processes) and detention
(through alternatives to detention – examined in more detail in the following section
of this chapter). Diversion is an important component of restorative justice. It is based
on the understanding that the formal criminal justice system is:
*
*
*
Essentially punitive rather than restorative;
Often subject to gross human rights violations as seen in Chapter 6;
That not every criminal violation warrants a formal courtroom
prosecution, particularly in the case of non-violent, first-time offences.
The following table demonstrates the benefits of restorative justice in comparison with
approaches used in the formal justice system.29
RETRIBUTIVE
REHABILITATIVE
RESTORATIVE
Focus
Offence
Offender
Relationships
Reaction
Punishment
Treatment
Reparation
Objective
Deterrence
Conformism
Restoration
Victim’s position
Secondary
Secondary
Central
Social context
Authoritarian
Welfare
Democratic
Child’s reaction
Anger
Dependency
Responsibility
THE BENEFITS OF DIVERSION
Benefits for the individual child
•
•
•
•
Evidence shows that diversion is likely to have a positive impact in reducing rates
of offending.30
Diversion aims to break the revolving door cycle of stigmatisation, violence,
humiliation, and rupturing of social relationships.
It avoids labelling children and reinforcing their criminal experience.
It avoids limiting their options for reintegration and future development:
“Offenders sentenced to forms of disposal that introduce them to more criminals
(in particular in custodial sentences) learn criminal skills, language and culture
that is very likely to reinforce offending behaviour. Once defined as a criminal in
their own eyes and those of wider society, they find it much more difficult to
change and adjust to the world of school work and family life. It is therefore
argued that children should be diverted from court processes and from custody
whenever possible.” 31
Benefits for society
Diversion has benefits not only for the individual, but also for society as a whole. By
sparing appropriately selected first time offenders the expense of trial and the
stigmatising consequences of a criminal conviction, successful divertees are given the
opportunity to make reparations to their communities through integration rather than
isolation from social networks: “Activities such as the building of bus shelters or
school-rooms, or the planting of gardens in public places have in general proved highly
successful in maintaining the principle that the key objective of penal policy should
be whenever possible to reintegrate the offender into the community and not distance
him or her from it.”33
[B]y locking them up
we confirm all their
worst beliefs about
themselves and
society, and make it
more likely that they
will offend again
and again.32
29 Table taken from Mukonda, R., Juvenile
Justice Project in Namibia, Legal Assistance
Centre, Namibia, paper presented at a seminar
on Juvenile Justice held in Lilongwe, Malawi, 23
- 25 November 1999.
31 Ibid, p.12.
32 Blewett, K. and Woods, B., Kids Behind Bars
[film], True Vision productions, 2001 and their
supporting feature article in Just Right: Kids
Behind Bars (special issue), Jubilee Action,
Autumn 2001, p.8.
33 FRELIMO, Mozambique Briefing: Building a
New Legal System, Information Department,
Frelimo Party Central Committee (no date),
quoted in quoted in Stevens, J., Access to
Justice in Sub-Saharan Africa: The Role of
Traditional and Informal Justice Systems, Penal
Reform International, November 2000, p.57.
125
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ECONOMIC BENEFITS
Furthermore, not only is it socially and psychologically preferable, but many nonformal justice options are also much cheaper than court procedures and detention.34
Research by Penal Reform International (PRI) has shown that criminal justice systems
all over the world use up scarce resources that could have been deployed towards
more beneficial social programmes. Imprisonment prevents people from contributing
to their local economies and their families. Imprisonment is also very costly. For
example, according to a former Brazilian prison administrator, "The annual cost of a
prisoner in Brazil is US$4,440, but in some states this number is much higher.... If the
money that is being spent to maintain the 45,000 prisoners that did not commit violent
or serious crimes could be used in some different ways, one could, for example, build
18,163 units of houses for the poor; or 4,995 health care units; or 391 schools." 35
There therefore needs to be accelerated investment into research and advocacy efforts
to influence policy reform in this direction.
It is important to note that diversion applies only to children in conflict with the
law. Street and other children who are need of care and protection should not be
being processed through the criminal justice system in the first place, as outlined
in the previous section on separating social welfare and criminal justice systems.
TYPES OF DIVERSION
Pre-trial diversion options can include:
•
police warnings
•
mediation
•
family group counselling
•
community service
•
conditional or unconditional release
•
behaviour contracts
•
probation
•
referral to other services such as NGO programmes and substance abuse centres
34 See e.g. Uchena, T.P., ‘Community Service
in Zimbabwe’ in Petty, C. and Brown, M. (eds),
Justice for Children, 1998, pp.55-57. “In
Zimbabwe, community service has been proved
cheaper than custody and has helped some
young people into employment. It may be
possible to replicate the model in other African
countries.”
35 Julita Lemgruber addressing the PRI/UPR
Conference on alternatives to imprisonment,
quoted in Singh, W., Alternatives to Custody in
the Caribbean: The Handling of Children who
Come into Conflict with the Law, paper
presented at the Innocenti Global Seminar on
Children Involved with the System of Juvenile
Justice, Florence, 12-22 October 1997,
http://www.penalreform.org/english/frset_pub_
en.htm
36 Roy, N., Juvenile Justice Presentation,
December 2001.
37 Adapted from Giles, Prof. G.W., Turbulent
Transitions: Delinquency and Justice in
Romania, Bucharest, March 2002, p.286.
126
Alternatives to detention can include the following, as specified in the Beijing
Rules:
•
care, guidance and supervision orders
•
probation
•
community service orders
•
financial penalties, compensations and restitution
•
intermediate treatment and other treatment orders
•
orders to participate in group counselling and other similar activities
•
orders concerning foster care, living communities or other educational settings36
Categorisation of crimes / offences is needed in order to determine the most
suitable option in individual cases (ranging from very minimal to intensive, residential
or long-term intervention). Such categorisation might look like this:
•
temporary anti-social behaviour
•
children manifesting disturbing behaviour / psychosocial problems / mental
illness
•
first-time, non-serious offenders
•
persistent, non-serious offenders
•
one-off grave offenders
•
persistent grave offenders37
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SCREENING AS PART OF THE PRE-TRIAL DIVERSION PROCESS
IN NAMIBIA 38
PROJECT EXAMPLE
Screening is the administration of standard questionnaires to arrested children by
trained screeners who are usually social workers. There are two questionnaires
administered: a) the case information questionnaire and b) the monitoring
questionnaire. The purpose of screening is:
•
•
•
•
•
To identify the circumstances of the child
To determine the nature of the crime
To ensure that children are placed in the custody of their parent/guardian
To monitor the treatment of arrested children
To make recommendations to the prosecution regarding diversion
These possible recommendations are either to prosecute or to divert the child to:
• Life-skills programme
• Prosecutor’s warning or unconditional withdrawal
• Supervision (probation)
• Counselling
• Consensus decision making
• Pre-trial community service
• Children’s court enquiry
In conducting screening, the best interests of the child is the guiding principle.
CONDITIONS OF DIVERSION
Practical tips
CRITERIA FOR PARTICIPATION IN PRE-TRIAL DIVERSION
PROGRAMMES
Not all children in conflict with the law qualify for participation in a diversion
programme. There is usually a set of criteria similar to that used in Namibia:
•
•
•
•
•
The child freely admits his/her guilt;
The child’s willingness to comply with the conditions of diversion;
The child is a first-time offender;
The offence comes within the category of ‘less serious’;
All the role players are satisfied with the recommendations of the screener.39
The criteria for participation in Pre-Trial Community Service in South Africa are
similar, with the following additions:
•
The accused not only accepts his/her guilt, but also shows remorse and
responsibility;
•
The accused is 14 years or older;
•
The accused has special skills which can be put to good use in the
community;
•
The accused has a fairly stable lifestyle, for example a contactable address
(work or home);
•
The community service can serve some purpose of reparation and victim
healing.40
Furthermore, in the case of South Africa, children are considered unsuitable for
community service if they are:
•
Dependent on alcohol or drugs;
•
Violent;
•
Exhibiting mental / behavioural challenges. 41
38 Mukonda, R., Juvenile Justice Project in
Namibia, 1999. A Juvenile Justice Forum (JJF)
comprised of government line ministries, NGO’s
and individuals was set up in 1994 and is
currently in place in almost every region in
Namibia. In 1995, the Windhoek JJF mandated
the Legal Assistance Centre (LAC) to start a pilot
pre-trial diversion programme - the Juvenile
Justice Project (JJP), now in operation all over
Namibia. The aims are: advocating for the
separation of detained children from adult
detainees/prisoners in police cells and prisons;
speeding up the process of removing children
from pre-trial detention to the custody of a
parent/guardian; giving priority attention to
children held under pre-trial detention who are
awaiting trial; educating all the stakeholders
about the need for pre-trial diversion; providing
pre-trial diversion options for the Namibian
criminal justice system in cases involving
children (during arrest, court proceedings, and
sentencing stages); ultimately to create a
comprehensive juvenile justice system in
Namibia. The process also includes weekly cell
visits and reporting and family tracing.
Successful implementation in Windhoek and
Mariental is credited to the employment of staff
specifically as juvenile justice workers unlike in
other regions where implementation is very
slow and hampered by lack of juvenile justice
policy and legislation that would bind the
government ministries to employ regional
juvenile justice workers.
39 Ibid.
40 Diversions - An Introduction to Diversion
from the Criminal Justice System, National
Institute for Crime Prevention and the
Rehabilitation of Offenders, 1994, cited in The
Partnership for Global Good Practice (PGGP),
International Standards for the Administration of
Juvenile Justice And Examples of Good
Practice, February 2002, pp.11-14. Nearly 95%
of offenders comply with their contract (usually
between 30-50 hours of community service
with any non-profit organisation, agency or
institution that delivers a service to the
community) due to the fairly low number of
hours required, the personalised attention given
to offenders, and attempts to accommodate the
server’s preferences and skills as far as
possible when matching up placements.
41 Ibid.
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CHALLENGES TO IMPLEMENTING DIVERSION PROGRAMMES
FOR STREET CHILDREN
Despite the huge potential benefits of diversion for street children, there are
unfortunately significant obstacles to implementing such programmes with homeless
/ street-living children:
•
Conditional or unconditional release, care, guidance and supervision orders,
probation, community service orders and orders to participate in group
counselling and other similar activities are all dependent on the child having
a fairly stable contact address and being supported by responsible adults
into whose care the child can be released.
•
Financial penalties, compensations and restitution may prove difficult for some
street children to comply with due to their extreme poverty.
•
Intermediate treatment and other treatment orders, orders concerning foster
care, living communities or other educational settings - which may be more
appropriate options in the case of homeless children - all depend on the
existence and functioning of adequately resourced infrastructures and
labour-intensive services. Unfortunately, in many countries, even if such
options exist in theory, they may not do so in practice. For example, in Albania,
the Criminal Code (Art. 52) allows for placement in educational institutions, but
as of May 2000, these had not yet been established;42 similarly, the Code for
Children and Adolescents in Nicaragua provides for similar facilities which are
not in place and which has led to a public backlash against children apparently
being released scot-free;43 furthermore, in Lagos, Nigeria, with only one NGO
offering residential care facilities for homeless children outside the criminal
justice system (and even then with a capacity for only 8 boys), there is simply
nowhere else for the vast majority of children to go.
•
Additional problems experienced by some street children, such as substance
abuse and aggression may also exclude them from admission to such
programmes, as would be the case in the South African example above.
Diversion therefore becomes an even more complex challenge in the case
of street children, a challenge which requires even more innovative
approaches that re-examine and strengthen street children’s support
systems and webs of relationships. However, this is not to say that it cannot
be done, or that it shouldn’t be tried. Diversion is essential to all children
in conflict with the law, and proactive efforts must be made to overcome
the obstacles that currently discriminate against street children in this
context. According to the implementers of the diversion project featured
below in the Philippines, “this is where social workers come in. It is
necessary to find the nearest ‘kin’ to the child, even if this is not a family
member (e.g. it could be someone from church or a social worker).”44
EXAMPLES OF DIVERSION
PROJECT EXAMPLE
Examples of diversion: Comprehensive diversion programmes
COMMUNITY-BASED DIVERSION PROGRAMME FOR CHILDREN IN
CONFLICT WITH THE LAW - PHILIPPINES
A pilot project in Cebu City, Philippines implemented by Free Rehabilitation, Education,
Economic and Legal Assistance Volunteers Association, Inc. ( FREELAVA) and Save the
Children UK, Philippines.
Issue: Thousands of Filipino children are at present confined in various prison
facilities all over the Philippines, either serving sentence or awaiting trial in courts.
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In Cebu City for example, the city jail now houses more than 200 children charged
with various offences, ranging from petty offences such as solvent use, theft to
more serious crimes like robbery, murder, rape and others. The number of children
placed in jail centres increases year after year. As their population increases, more
and more children suffer deprivation and abuse inside detention cells. There are no
separate detention facilities for children and they are incarcerated with convicted
adult criminals. It is also a fact that the country in general lacks a comprehensive
justice programme for children that includes in particular a standardised
“community-based diversion approach” so that children upon commission of an
offence will no longer enter the formal criminal justice system. Moreover, there are
inadequate recovery and reintegration services and strategies for children in
conflict with the law. Most of these children who return to their communities are
left on their own without adequate counselling and psychosocial services and
corresponding community or family support.
PROJECT EXAMPLE
Project: Based on the principles of restorative justice, the project introduces a holistic
community-based diversion programme for children in conflict with the law (CICL) at
the barangay level (smallest level of government). The project encourages and
supports the participation of the parents of the CICL, government and school officials
and social workers by organizing a functional community level committee that
implements a diversion programme in the community. As a community-based
programme, it embarked on securing the active and ongoing participation of
Community Volunteers (CVs) to provide support to the CICL. The CVs develop a
relationship with the child, who at the same time is gaining the confidence to become
an effective Peer Facilitator within the community. The project likewise introduces
various psychosocial interventions to children, monitoring and follow-up mechanisms
as well as crime prevention activities.
Results: The project was able to select, train and organize CVs from the selected areas
in Cebu City. At present, almost a hundred CVs are actively backstopping (following-up
and monitoingr) children whose cases have successfully passed the diversion process.
The Children’s Justice Committee (CJC) has been formed to conduct mediation in the
community. Children committing petty offences are no longer referred to the formal
justice system. The strategy/approach used by the CJC is mediation and conflict
resolution. So far, almost 100 cases involving children have passed through the
programme. Instead of confining the children in jail or to residential care, they are
either returned to their families or placed under the custody of responsible persons,
with the agreement of undergoing a rehabilitation programme that is being supervised
by the CVs. To further facilitate monitoring and follow-up, the CVs, as part of their
volunteer service, assist in the training of children as Peer Facilitators, and conduct
regular one-on-one visits with them, either at home or in school. At the moment, each
CV is backstopping an average of two CICL, including those former CICL in the
communities whom the trained Peer Facilitators have so far contacted and who later
became members of their network.
7
Lesson learned: A community-based approach which addresses the support needs of
CICL is an effective alternative to residential care. However, the participation of CVs is
a critical and important component in this programme as they provide the day-to-day
support that is essential for CICL from the first moment they are reintegrated into the
community and until they are fully rehabilitated.
Useful advice: “We thought of using diversion programmes in our localities in order to
promote forgiveness. Diversion really has to be localised if it is to be used successfully.
200 children have passed through our diversion programme and are now in formal
schools. Focus on your responsibility to the community – community should be the
number one interest in a diversion program. Post-diversion approaches must also be
considered and implemented in order to uphold and maintain the system. Train
volunteers to be child-sensitive because they become peer educators after the
diversion programme. Only 10% re-offended in our programme which is largely
because of the post-diversion initiatives.” 45
42 Hazizaj, A. and Barkley, S.T., Awaiting Trial: A
(CRCA), May 2000, p.65.
43 Casa Alianza Nicaragua and Consortium for
Justice in Nicaragua, February 2004, p24.
44 Antonio Auditor, FREELAVA, speaking at the
CSC International Workshop on Street Children
and Juvenile Justice, 14-18 July 2003, London.
45 Ibid.
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This programme example from the Philippines shows once again how relationshipbuilding at community level is key to working with street children. The
following example from Kenya highlights the need for residential diversion options for
street children and the challenges faced when such facilities and services are
insufficient to cope with the demand for them.
SAVE THE CHILDREN UK PILOT DIVERSION PROJECT FOR CHILDREN IN
CONFLICT WITH THE LAW IN KENYA
The problem: Most of the children in the juvenile justice system in Kenya have been
arrested by the police for being on the streets, even though they have committed no
crime. Instead, they are charged with being in need of care and protection. They
spend long periods of detention in police cells before they are taken to court, where
they are treated the same as offenders, and are usually referred to approved
schools. Most children in conflict with the law have no access to legal
representation. Save the Children carried out studies and consultation with
stakeholders, culminating in a workshop at which the framework was developed for
a project to divert children away from the juvenile justice system.
PROJECT EXAMPLE
The solution: It was agreed to set up teams in three pilot districts to carry out
diversionary measures for children in conflict with the law, including special
children’s desks at police stations for filtering child welfare cases. The District
Diversion Core Teams (DDCTs) are made up of staff from children’s services, Save
the Children, the police, probation and after-care services and NGOs active in the
field of juvenile justice. A National Diversion Core Team oversees the work of the
district teams and makes recommendations on policy changes.
Successes: Child-friendly rooms have been set up at the pilot project police
stations, where police officers are usually not in uniform. Children’s cases are being
handled appropriately, and there are attempts to base decisions on each child’s
individual circumstances.
• Between April 2001 and August 2002, the DDCTs teams handled a total of 592
children who had come through the pilot police stations. Of these, about 65 per
cent had been successfully reintegrated into their communities.
• There have been some improvements in data management in the selected police
stations, including the introduction of diversion registers.
• There is more collaboration and networking, with attempts to create links with
the local councils, legal networks and the business community. There is also
greater participation in the diversion process by government departments,
NGOs, legal networks, community-based organisations, and community and
local authority leaders.
• There has been an increase in child participation, with 500 children having been
involved in diversion meetings where some had an opportunity to express their
views.
• The principle of using custody only as a last resort is being implemented in the
pilot areas.
Challenges: There have been a number of challenges to the project, including: lack
of trust between government and NGOs; lack of an effective, centralised information
management system in the juvenile justice system; the absence of policy on the
administration of juvenile justice and the lack of any clear policy or legislation on
diversion; a heavy reliance on institutional care for children who cannot
immediately be returned to their families; scant resources available for the
development of community-based care such as temporary care homes and fostering
networks; ongoing need to address the root causes for children coming into contact
with the law in the first place (poverty, family separation, lack of education etc.).
Lessons learned: The DDCTs, in their efforts to involve the wider community,
significantly increased the number of NGOs involved in the process. This was done
without ensuring that these organisations fully understood the principles of
diversion and the objectives of the project. As a result, some misconceptions arose,
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PROJECT EXAMPLE
one of them being that the project was concerned only with returning children to
their families or communities and that no intervention would be undertaken where
the home environment was not conducive to reunification. Efforts are now being
made to ensure strictly defined and managed partnership arrangements.
It became clear at an early stage that NGOs would be willing to co-operate only if
they felt they were equal partners in the process. This led to the formation of
interagency diversion core teams at both district and national level, comprising
representatives of both government agencies and NGOs, to oversee the development
and management of project activities and have equal control of finances.
Although the project has been very successful to date, one of the major problems
still to be addressed is the fact that temporary care homes are full, and there is a
scarcity of alternative places where children can be held while investigations are
under way.
Examples of diversion: Specific forms of pre-trial diversion:
mediation and family group conferencing
Various models of family group conferencing (FGC) and mediation are
increasingly playing an important part in restorative diversion programmes
internationally,46 based on:
•
Their success in addressing both the victim’s and offender’s needs;
•
Engendering responsibility on the part of the offender;
•
Reducing rates of recidivism;
•
Increasing awareness on both sides of the causes and consequences of the
offence;
•
Breaking down of social barriers and attempting to restore the damage
done to social and community relationships.
As with the example of community-based diversion from the Philippines, in the
absence of ‘traditional’ family support, the potential for success with these models in
the specific context of street children will depend on identifying and engaging
‘alternative / substitute’ ‘family’ contacts in the process. It is at this stage once again
that interventions need to consider the important role of peer friendships, gangs and
other support systems identified by the children themselves.
A further question regarding mediation in the street children context is whether or not
mediation programmes are feasible in complex urban settings. For example, as part of
a more comprehensive programme on juvenile justice in Lao, Save the Children UK
is undertaking a project to adapt Village Mediation Units for use with children and
young people (VMUs were established by the Ministry of Justice in 1997, formalising
previously informal, traditional use of mediation in civil and criminal cases).
However, concern has been expressed as to whether or not this programme could be
effective in more urban, dislocated communities.47 Likewise, despite interest in the
concept of mediation and appreciation of its potential benefits, this issue was also
raised by participants at the Consortium for Street Children International Workshop
on Street Children and Juvenile Justice, July 2003, who cited lack of resources and
infrastructure along with mobile / shifting communities as severe obstacles in
implementing such programmes in many cities.48
However, in spite of these difficulties the following example from Pakistan illustrates
how mediation and conferencing can work, even in urban settings and in the context
of disrupted support structures for street children.
46 See e.g. Skelton, A., ‘International trends in
the re-emergence of traditional systems’, in
Stevens, J., Access to Justice in Sub-Saharan
Africa, 2000, pp. 99-101.
47 Based on Parry-Williams, J., Village
Mediation Units in Lao PDR and their Adaptation
for Children and Young People, presentation to
CSC International Workshop on Street Children
and Juvenile Justice, 14-18 July 2003. The aim
of the overall Save the Children UK project is to
establish a juvenile justice system in line with
the CRC that prioritises diversion, mediation,
juvenile courts and non-custodial sentences.
This will be achieved through: training members
of justice system on child rights and juvenile
justice principles; developing action-plans at
provincial and district level to adapt justice
system to meet child rights; using existing
community systems to promote diversion; and
establishing systems of data collection.
Participants in juvenile mediation would include
the Convenor and village elders, victim, victim’s
supporter or representative, young offender,
young offender’s parents and teacher/employer.
Restitution outcomes available to Juvenile
Mediation Units would include apology,
cautions/warnings, compensation, community
service and reparation to the victim.
48 Comments from Prof. Bolaji Owasanoye,
Human Development Initiatives, Nigeria,
amongst others at the CSC International
Justice, 14-18 July 2003.
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Case study
STREET CHILDREN AND MEDIATION –
AZAD FOUNDATION, KARACHI, PAKISTAN
Azad Foundation, a street children NGO based in Karachi, regularly uses mediation
in the context of disputes between children and in relation to family reconciliation
of street children. However, in 2002, they extended this approach to a particular
criminal justice case. In November 2002, Jahangir, a 12-year-old street boy was
murdered. Immediately prior to his murder, Jahangir had been involved in a robbery
with some friends but after this, according to one of his friends who witnessed the
events, he was in turn robbed of the money and then sexually abused and
eventually killed by a 24-year-old homeless adult. However, as the witness was
afraid to come forward, one of the other street boys involved in the initial robbery
was arrested for the murder instead. It was only through the intervention of Azad
Foundation that the witness was persuaded to tell the truth and the real culprit was
identified.
Within 30 days, Azad Foundation had instigated and arranged a mediation session
involving the parents of Jahangir, the parents of the wrongly accused street boy,
and the murderer and his father and uncle, all of whom were identified and
contacted through Azad’s database of street children and contacts on the streets.
The aims of the mediation session were to convince the murderer to accept
responsibility and hand himself into the police, to secure the release of the falsely
accused street child in custody, to raise awareness amongst all parties of the
consequences of living on the street and to obtain compensation for the murdered
boy’s family. The session was mediated by a senior field officer, social motivator,
counsellor and lawyer from Azad Foundation.
The session was held in private in order to respect confidentiality and to minimise
interference and resistance from the community, media and police (there were
concerns that the police and media would misinterpret the mediation session as
offering leniency and support for the murderer at the expense of justice). Problems
encountered during the actual session included an initial 45 minute period of
abusive language and accusations, and unwillingness to cooperate on the part of
some of the participants. These problems were overcome through a combination of
‘carrot and stick’ approaches offering financial support and health services to the
parties involved and threatening recourse to the police should the mediation fail.
Despite the difficulties, however, at the end of the emotional three hour session all
the parties agreed on the settlement which was then taken up with the authorities:
the murderer went to trial and was sentenced to 6 years imprisonment; the child
who was wrongly accused was released and reconciled with his family, assisted by
some financial aid; and the murderer’s family was encouraged to support him in his
rehabilitation process.
Informal mediation and restorative justice may also be inherent within peer groups of
street children as illustrated by this example from Angola.
Case study
RESTORATIVE JUSTICE IN STREET CHILDREN’S PEER RELATIONSHIPS ANGOLA 49
49 Sérgio de Assis Calundungo, Street children
in Angola: CEIS (Centro di Informazione e
Educazione allo Sviluppo, in Petty, C. and
Brown, M. (eds), Justice for Children, 1998,
p.75.
132
In the context of peer relationships amongst street children in Luanda, Angola, the
NGO CIES (Centro di Informazione e Educazione allo Sviluppo), describes how theft is
often not tolerated within a particular group and that punishment is usually
considered reasonable for theft and other crimes. Although disagreements are often
resolved through physical punishment and violence, there is also a strong sense that
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an appropriate level of compensation is the best way to maintain equilibrium in the
group. “If a child steals from another member and the compensation is money,
relationships return to normal.” In this way, the children are already naturally
exercising forms of restorative justice.
It is therefore reasonable to assume that the peer group can be engaged as a
support system in mediation and other diversion measures that are externally, as
well as internally, imposed.
Family group conferencing (FGC) is a specific type of mediation and for reference,
some of the ‘standard’ models of FGC are outlined here, although - as indicated above
- they would need to be adapted for use with street children through the identification
and engagement of ‘alternative family’ support persons.
Practical tips
MODELS OF FAMILY GROUP CONFERENCING (FGC)
FGC - New Zealand model: A meeting at a time and place chosen by the family is
attended by a young offender, their family, the victim, the police, a youth advocate
when appointed, and any other people whom the family wish to invite. The
conference is organized by the Youth Justice Coordinator who acts as facilitator and
mediator between family and police, although the Coordinator can invite others to act
as facilitator (especially if this is considered culturally important). Usually, after
introductions and greetings, the police describe the offence and the young person
admits or denies involvement. If there is no denial the conference proceeds with the
victim describing the impact on him or her of the offence. Views are then shared
about how the mater could be resolved. The family deliberates privately, after which
the meeting reconvenes with the professionals and the victim to see if all are agreed
on the recommendations and plans advanced by the family.50
FGC - Australia, Wagga model: A meeting held as an alternative to traditional
justice procedures is facilitated by a police officer. Those involved are: the
perpetrator(s) and victim(s) of an offence, together with the families and friends of
both the victims and offenders and others directly affected by the offence.
Conferences are convened in cases in which the preliminary investigation has been
conducted, where guilt is accepted and where the voluntary participation of both
victim and offender is secured. Each conference is coordinated by a police officer (or
other official or trained volunteer), whose role is to encourage participants to express
their feelings about the offence and to reach some collective agreement about how
best to minimize the harm resulting from the offending behaviour. Agreements
usually involve some arrangements for appropriate restitution and reparation. These
arrangements are formally agreed to but are not legally binding.51
FGC - Australia, Canberra model: Following the pattern of the Wagga model of
conferencing with or without the presence of victims or using community volunteers
as stand-in victims where there has been no actual harm to a specific victim (as in
drunk-driving or drug abuse offences).52
FGC - REAL Justice model: A scripted version of the Wagga conferencing model
held, either as an alternative to, or in combination with, traditional criminal justice
proceedings. It is facilitated by a police officer/justice official, school representative
or community volunteer acting on behalf of such an official.53
50 Maxwell, G. and Morris, A., The New
Zealand model of family group conferences in
Family conferencing and juvenile justice: the
way forward or misplaced optimism?, Alder &
Wundersitz eds., Australian Institute of
Criminology, Canberra ACT, Australia 1994, cited
in Giles, Prof. G.W., Turbulent Transitions, 2002,
p.352.
51 Moore, D.B., A New Approach to Juvenile
Justice: An Evaluation of Family Conferencing
in Wagga Wagga. A report to the Criminology
Research Council, Wagga Wagga, New South
Wales: Centre for Rural Social Research,
Charles Sturt University, Riverina, Australia,
1995, cited in ibid, p.352.
52 Reintegrative Shaming Experiment,
Research School of Social Sciences, Australian
National University, Canberra ACT, Australia,
cited in ibid, pp.352-353.
53 www.realjustice.org, cited in ibid, p.353.
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examples of diversion: The role of traditional and informal justice systems in
relation to street children and diversion 54
Parties are
less likely to
be willing and able
to reach a
compromise in
larger urban
communities unless
their relationship
ranges beyond the
transitoriness of the
court or a particular
dispute; or unless
social pressures
from family, friends,
colleagues or other
peers can be
brought to bear in
encouraging a
compromise.56
Some of the diversion options introduced above, such as mediation and family group
conferencing, are based on traditional and informal justice systems. Taking into
consideration international human rights standards, increasing attention is being paid to
reviving such systems, capitalizing on the benefits of by-passing expensive, punitive and
isolating ‘formal’ (and essentially colonial) justice systems. Traditional and informal
justice systems therefore have a key role to play in the pre-trial diversion process.
However, this is on the clear understanding that they must be very carefully
monitored to ensure that they do not reinforce exploitive or discriminatory
community norms that may discriminate especially against street children in
general, and girls in particular.
Core principles when utilizing traditional and informal justice systems
for diversion
•
No one should be subjected to discrimination on the basis of sex or any
other status by either formal courts or informal justice forums.
•
Physical punishments – whether imposed by formal courts or informal
justice forums – amount to inhuman or degrading treatment which is
absolutely prohibited. States have an obligation to protect all those under
their jurisdiction from such treatment.
•
States should make it an offence for traditional or informal adjudicators to
order physically coercive punishments, or to try a person under duress or
in absentia, or to try a person for serious offences such as murder or rape.
•
These laws should be actively enforced and forums in which such offences
are repeatedly committed should be outlawed.55
Are traditional and informal justice systems suited to the street children context?
As with some of the diversion options already discussed, there is one main potential
obstacle to such systems being appropriate or feasible for street children: traditional
and informal systems, which work at the level of restoring relationships, depend on
the existence of stable relationships in the first place. The majority of these systems
to date tend to operate more effectively in close-knit, rural communities as opposed to
the more fragmented urban communities in which street children live and work:
“Traditional and informal justice systems are best suited to conflicts between people
living in the same community who seek reconciliation based on restoration. ‘Parties
are less likely to be willing and able to reach a compromise in larger urban communities
unless their relationship ranges beyond the transitoriness of the court or a particular
dispute’; or unless social pressures from family, friends, colleagues or other peers can be
brought to bear in encouraging a compromise” [emphasis added].56
54 ‘Traditional justice systems’ refers to nonstate justice systems which have existed since
pre-colonial times. ‘Informal justice systems’
refers to any non-state justice system. Stevens,
J., Access to Justice in Sub-Saharan Africa,
2000, p.1.
55 Ibid, p.2.
56 Ibid, p.167, quoting van Velson, J.,
‘Procedural Informality, Reconciliation, and
False Comparisons’, 1969.
57 The conference brought together national
and international NGOs and government
representatives from 11 African countries.
Stevens, J., Access to Justice in Sub-Saharan
Africa:, p.96.See also, ‘The Potential of
Traditional Institutions in Ethiopia’, Yitayew
Alemayehu, in Justice for Children, p. 98:
“Systems based on blood relationships would
be impractical in urban communities, where the
extended family does not live in one place –
although other urban networks have to some
extent taken their place’.
A Save the Children (UK and Sweden) conference held in October 1996 in Swaziland
on the extent to which traditional justice systems promoted or undermined children’s
rights as set out in the CRC determined that: “The overall finding is that there was
insufficient primary research on informal mechanisms, particularly those existing in
urban and peri-urban areas, to draw generalized conclusions.”57 An example of work
that is beginning to address this area is the Community Conflict Management and
Resolution programme, South Africa. A workshop was organised in Durban in 1997
to bring together traditional leaders and youth mediators from Kwa-Zulu Natal. “The
aim of the conference was to inform youth mediators, who are based mainly in urban
areas, of indigenous methods of resolving disputes still being practiced in the rural
areas….As a result, the Association of Youth Mediators has resolved to involve
community elders and to continue to learn more about indigenous methods and to
incorporate them in their work.” 58
58 Ibid, p.116.
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In relation to street children, alternative support systems in the community need to
be examined and brought into play on behalf of the children. Possibilities for
individual and community support are illustrated in the following example of street
children in Luanda, Angola.
Case study
PEER AND COMMUNITY SUPPORT SYSTEMS
FOR STREET CHILDREN IN ANGOLA 59
CIES (Centro di Informazione e Educazione allo Sviluppo), an NGO in Angola,
describes the relationships between street children and community members in
Luanda, and outlines different groups of street children and their relative levels of
involvement in crime.
CIES states that many street children develop a relationship with a trusted adult
(‘braga’) who looks after their money until they need it and who sometimes
develops a ‘closer, more parental relationship with the child’ letting them play with
their children, eat and watch TV with the family. “Most children would describe it as
a relationship of mutual respect rather than dependency.”
The first group of street children identified by CIES is relatively stable and has
developed a relationship with local residents. This type often expressly prohibits
theft, burglary or any other offence within the boundaries of its own ‘patch’. The
children are dependent on receiving a regular income from local residents and on
being allowed to continue sleeping in a stable and relatively secure place. Criminal
behaviour would jeopardise this group’s lifestyle. For these children there is often a
system of mutual protection: the group will protect the residents’ homes and the
residents will react if the children are threatened. This group tends to have a better
relationship with the police and may benefit from police protection – although
sometimes this is paid for. The social relationships between this type of group and
the local community – monitored and protected by the peer group to preserve the
mutually beneficial equilibrium – help to prevent the children getting involved in
crime and help to maintain stable relationships with the police. However, if the need
arose, this type of relationship could also presumably be drawn on to support
children in diversion measures and alternatives to detention that require such
community links.
The second group of street children is described as less united, with a higher
turnover of members and a greater tendency towards criminal behaviour. There are
often more fights between members of these groups and they are more vulnerable to
attacks by outsiders stealing the money they have earned. They are more likely to be
arrested and to experience violence with the police than the first group. This group
is obviously more challenging: they are more likely to come into conflict with the
police and the law, but – unlike the first group - also have weaker ties to the
community. These factors are clearly linked as the lack of social safety nets fails to
prevent conflict with the law. Weaker community relations would also mean that it
would be less likely that community members would be willing to support individual
children in diversion programmes.
However, it is possible that – given the evidence that the community is generally
open to supporting vulnerable children (as demonstrated with the first group), ways
could be identified to work with children so that they have the choice of making the
‘transition’ from the second to the first type of group. This same principle could be
applied to the third type of street children group: street girls, the majority of whom
sell sexual services for survival, usually out of choice (or limited choice / nonchoice).
7
59 Sérgio de Assis Calundungo, Street children
in Angola: CEIS (Centro di Informazione e
Educazione allo Sviluppo, in Petty, C. and
Brown, M. (eds), Justice for Children, 1998, pp.
72-76.
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Case study
EXAMPLE OF INFORMAL DIVERSION STRATEGIES WITH
STREET CHILDREN - CHILDHOPE ASIA PHILIPPINES –
STREET EDUCATION PROGRAMME
Late one afternoon, five street children (three girls aged 11, 12 and 13 and two boys
aged 10 and 11) were caught by community officials sniffing glue beside one of the
houses in their neighborhood. The head community official immediately called the
office of Childhope Asia Philippines’ Street Education Programme to inform the
street educators of the apprehension.
The cooperation and partnership demonstrated here between the street educators
and community officials is the result of extensive community education and
advocacy work carried out over a period of time by the organization in the
neighborhood where the street children were caught. Primarily, the collaboration
focuses on how both parties may maximize their roles and utilize their resources to
better help street children. Another aspect of the partnership is to immediately
inform the street educators of incidents involving street children (especially those
involved in abuse and apprehension cases, whether the child is a victim or an
offender), as in the current case.
The street educators and their supervisor gathered all the necessary information
from the community official over the phone. All the street children who were
apprehended were out-of-school. It was found out that the two boys and one of the
girls still had parents to go to and that this was the second occasion that these
children had been caught sniffing glue. On the other hand, the other two girls had no
homes to go to and this was the first time they had been caught for glue-sniffing.
One of these girls was very new to the streets, having recently run away from home.
The other girl was the sister of a street girl who had already been referred by the
street educators to a temporary shelter where she was still staying at the time of
the incident.
A short case assessment and planning meeting was held among the street
educators and their supervisor to determine the best course of action. Before
proceeding to the area/neighborhood, the street educators coordinated first with the
community official, informing him of the proposed plan of action, with which he
agreed.
The following courses of action were taken: group counselling/conferencing among
the parents and the street children, together with the community official; releasing
the 3 children to their parents’ custody with the parents having signed a
memorandum of agreement with the community official/office, taking on the full
responsibility in ensuring that the child will not be involved in glue-sniffing again;
individual counselling among the 2 girls and their referral to temporary shelters,
with one of them referred to where her sister was also staying; coordination with
the Department of Social Welfare and Development about the case; and close
monitoring of the 3 children who were released to their parents but who were still in
the area (conduct of family counselling, involvement of the children and parents in
the project’s activities whenever possible etc.).
THE ROLE OF THE POLICE IN DIVERSION PROGRAMMES
As can be seen by the diagram illustrating stages of intervention, the police are key in
the pre-trial diversion process: they are the first point of contact between children and
the criminal justice system and, as such, are the key actors in diverting children away
from that system at the earliest possible stage. Some examples of how the police can
be engaged as positive actors in the ‘network of support’ have already been referred to
earlier in this book. This section includes some additional examples relating
specifically to the role of the police in diversion programmes.
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BANGLADESH: IMPROVED INSTITUTIONAL RESPONSES TO CHILDREN IN
CONFLICT WITH THE LAW – MODEL OF POLICE GOOD PRACTICE
PROJECT EXAMPLE
Aparajeyo Bangladesh (AB), in association with ChildHope UK, are undertaking a 3-year
project (April 2002 – March 2005) with 5 Police Stations in Dhaka to develop a
replicable model of best practice to protect the rights of children in contact with the
law.
The project has built on informal contacts already established between AB and 4
police stations in Dhaka, where children were brought before the police on the
grounds of vagrancy and petty theft and were being handed over to AB. This
arrangement was ad hoc, subject to personal discretion and entirely dependent on
continuing good relations between individuals, rather than being formalised through
institutional agreements. Furthermore, the absence of written guidelines, agreed
procedures and training for the police means that this system does not guarantee
that all children are referred, or that all children are able to access their rights.
The project is seeking to formalise this arrangement through an agreement with the
Ministry of Justice and Parliamentary Affairs. It is working with 24 police stations
in Dhaka which regularly refer children to AB’s social workers. It has developed
Memorandums of Understanding to formalise its work with the 5 target police
stations and is providing training to police officers and members of other NGOs in
order to increase mutual understanding of relevant issues and to replicate similar
institutional arrangements between AB and 6 more police stations in Dhaka and
Chittagong. The project has established a Panel of Lawyers, some of whom as
individuals are providing legal support to children referred by the police in the court
system, but the panel also works as a powerful collective body, pushing for juvenile
justice reform.
The project will be guided by a Task Force which will be formalised in the second
year made up of a range of professionals including government representatives,
joint secretaries or directors of 4 Ministries, 6 national NGOs, including AB, and
juvenile justice professionals and academics. The Task Force will monitor and
advise the progress of the project as well as providing informed and direct links to
decision-makers in the government.
WORKING WITH THE POLICE IN VIETNAM 60
60
PROJECT EXAMPLE
The age of criminal responsibility in Vietnam is 14. The Vietnamese police have
applied diversionary measures for children, mostly aged 16 and below who have
committed less serious offences and/or are first-time offenders. Such diversion
measures include:
•
•
•
7
Mediation: involving police and the families of the offender and the victim;
Formal caution: for children who are first-time offenders;
Fine: in the case of children who re-offend a second time, parents or guardians
are fined, but not more than the equivalent of US$3.50.
Save the Children (Sweden) has had a working partnership with the Police Academy
since 1997 and with the General Police Department since 1999. A project
developing the capacity of police officers at the national and provincial levels
resulted in the following outcomes:
•
•
1,500 police officers were trained in CRC and juvenile justice standards;
The Police Academy has developed a specialised training manual. Twenty
lecturers at the Academy were trained in participatory methods for teaching the
subjects;
137
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PROJECT EXAMPLE
•
•
•
Page 138
The juvenile justice training has been institutionalised into the existing
curriculum for all police students, as well as tailored for working police officers
in their in-service training;
A partnership has been established between the police and Save the Children
(Sweden), based on frequent discussion and co-operation;
Save the Children (Sweden) and the police agreed to come together to
strengthen the capacity development of police officers and to develop a pilot
community-based project in Hanoi.
WORKING WITH THE POLICE: FORUM ON STREET CHILDREN,
ETHIOPIA (FSCE) 61
PROJECT EXAMPLE
FSCE, an indigenous NGO, has been targeting police station commanders and heads
of crime investigation departments in Addis Ababa and other major towns, as well
as recruits and cadets attending training courses in the police college and the
country’s 15 police training centres. Advocacy activities have included:
participatory action research / situation analysis; orientation programmes for police
recruits and cadets at police training centres and the police college (for 4,000
police recruits, 300 cadets and 192 senior officers as of 1998); orientation
programme for journalists and public relations officers; preparing leaflets,
brochures and posters that depict the circumstances of street children for
distribution to police stations in major towns, police training centres and the police
training college; preparing educational programmes on the problems of street
children on police radio and in newspapers.
Impact of the programme: positive changes include increased awareness; some
police commanders who have participated in the programme have initiated
activities to assist street children under arrest at their police stations; staff at
various street children projects have been offered cooperation by the police; greatly
increased coverage of the issue on police radio and in the newspaper; issue of
street children has been incorporated into the police training curriculum; training
manual has been prepared by FSCE and is already in use; regional Police
Commission has assigned a chief for the coordination of the child protection
programme with full-time support staff as well as an interagency committee –
including the Prosecutor’s Office, hospitals and social welfare organizations - to
support the programme; child protection programme offices established at 5 police
station in Addis Ababa, with financial support from Save the Children and with
working guidelines jointly determined by FSCE and the regional police
commissioner; police staff assigned to the child protection programme were trained
in crisis intervention, child psychology, communicating with children, basic
counselling, CRC and Ethiopian law regarding children.
Important changes as a result: increase in number of children quickly reunited with
families after arrest and have been referred to the community-based child offence
prevention programme where they receive recreational, tutorial and counselling
services. One psychologist, one lawyer and five para-social workers were employed
to assist police staff involved in child protection.
61 Gebremarian, T., ‘Working with the Police in
Ethiopia’, in Petty, C. and Brown, M. (eds),
Justice for Children, 1998, pp.77-79.
138
Challenges: courts are slow in processing both criminal or social welfare cases and
children are remanded in custody on a warrant, which forces the police to detain
children even if they would prefer to release them on bail; problems identifying
children’s ages.
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PRIORITY 4: ALTERNATIVES TO DETENTION
The final priority area for reform, the need for alternatives to detention, is very closely
linked to that of diversion and much of the material is relevant to both areas. As seen
above, pre-trial diversion measures such as mediation, family group conferencing,
NGO referrals, community service etc. automatically provide alternatives to detention
and should ideally be implemented at the earliest possible stage of contact with the
system – especially given the shocking length of time children in many countries
spend in pre-trial detention / on remand.
As with diversion, it is important to note that alternatives to detention in the context
of the criminal justice system apply only to children in conflict with the law. Street
and other children who are need of care and protection should not be being
processed through the criminal justice system in the first place, as outlined in the
previous section on separating social welfare and criminal justice systems.
However, in some cases it may not be possible to divert a child from the formal system
prior to the trial stage, e.g. in cases of serious crimes where release into the
community would not be appropriate, or where the child has not admitted guilt (a prerequisite for most diversion options). In this case, even at the stage of disposal /
sentencing, there are still possibilities to avoid the damaging effects of detention by
promoting the use of alternatives to detention.
Any system of
juvenile justice that
places less pressure
on magistrates, less
dependence on
prisons and more
emphasis on solving
the causes of crime
will also cost much
less and produce
better outcomes for
young offenders and
their victims.62
A REMINDER OF THE PROBLEM
According to all international standards, detention of children should only be used as
a last resort, for the most serious crimes, and even then for the shortest time possible
(CRC Article 37(b); Beijing Rules 13(1); JDLs I(2)). Unfortunately, as seen from the
examples of children’s horrific experiences in detention outlined in Chapter 6,
alternatives to detention are rarely implemented. The negative effects of detention for
both the individual and society as a whole have already been explored, i.e. failure to
address the root causes of crime and recidivism, and reinforcing social dislocation and
discrimination. However, they can be summarised briefly once again in the words of
some of the children involved:
I don’t want to remember anything that happened here.
Because if you put a child in prison his mind changes. His
mind becomes hardened, so he doesn’t mind being imprisoned
again. He’s not scared to go to jail anymore, so he will do
bad things.
7
(12-YEAR-OLD EUGENE, ACCUSED OF RAPING A 21-YEAR-OLD WOMAN,
HAD BEEN IN JAIL FOR 7 MONTHS, DESPITE THE FACT THAT THE COMPLAINANT
HAD ALREADY WITHDRAWN THE CHARGES, PHILIPPINES)63
62 Giles, Prof. G.W., Turbulent Transitions, 2002,
p.14.
63 Footage from Blewett, K. and Woods, B.,
2001.
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Poor children,
street
children, and
orphaned or
abandoned children
are more likely to be
detained than all
other categories of
children. 67
11:59 am
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What I’m praying for now is to get out so I can enjoy what
youth I have left. I’m only a teenager, but I haven’t had a
chance to enjoy life, just suffering and hunger. This is a junior
school for crime, then the prisons are a university for crime. You
can learn all the worst things there, but I don’t want that kind of
life. I didn’t have a real childhood, just prison, prison,
prison. (BRAZIL) 64
Street children are even less likely to benefit from alternatives to detention due to
factors already explored such as discrimination, criminalisation, public fear and lack
of responsible adult support structures necessary for many non-custodial options. This
results in children reported being given heavy custodial sentences for minor offences
such as three years’ imprisonment in the Philippines for sniffing solvent.65
The magistrates tend to release those children with some
sort of jobs, but were merciless to the tokais
(scavengers). (BANGLADESH) 66
The current situation in many countries is typical of that described by Human Rights
Watch in Guatemala: “In contrast to street and other poor children, who may be
interned simply for lacking a responsible parent or guardian, children with ‘family
resources’ usually avoid detention even when they are found guilty of the alleged
offense,” e.g. through a warning and the payment of a fine, bail or ‘conciliation’ with
the victim […]. “These methods for avoiding detention, all of which require the child
to have not only a parent, but economic resources as well, are not available to the vast
majority of children incarcerated in Guatemalan juvenile detention facilities. This
means that poor children, street children, and orphaned or abandoned children are
more likely to be detained than all other categories of children. The answer to such
discrimination, of course, is not to incarcerate more children, but to appoint guardians
or otherwise ensure equal treatment for disadvantaged children.” 67
Reliance on detention for street children therefore remains widespread, even where
alternatives to detention exist in theory within the law.
EXAMPLES OF ALTERNATIVES TO DETENTION
The Beijing Rules specify the following non-custodial sentencing options:
64 Julio, aged 14. Footage from ibid.
2003.
66 Zaman Khan, S., Herds and Shepherds,
2000, p.25.
68 Roy, N., Juvenile Justice Presentation,
December 2001.
140
•
•
•
•
•
•
•
care, guidance and supervision orders
probation
community service orders
financial penalties, compensations and restitution
intermediate treatment and other treatment orders
orders to participate in group counselling and other similar activities
orders concerning foster care, living communities or other educational
settings68
In addition to the examples cited in the previous section on diversion, the following
case studies illustrate a variety of non-custodial measures. Their adaptation for
effective use with street children would once again depend on relationship-building
within local communities and identifying alternative support persons.
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EXAMPLES OF DISPOSAL / SENTENCING ALTERNATIVES
In order for magistrates to accurately determine the most appropriate option for the
children before them, it is essential that adequate information is made available about
the child’s circumstances, presented in a child-friendly environment that provides an
opportunity for the child to speak for themselves. For example, in France, most
proceedings involve an informal audience in the office of the Children’s Judge, and
only in more serious cases or for severe educational impact on a juvenile offender
does the judge hold a formal trial in robes at the Tribunal Pour Enfants.69 In Scotland,
Children’s Hearings have operated in Scotland since 1971 bringing together the work
of several agencies; in particular the reporter (magistrate), an advisory committee, the
children’s panel and the social work department.70
THE SENTENCING CIRCLE - CANADA
PROJECT EXAMPLE
What is it?
A sentencing circle is conducted after the individual has been found guilty through
a formal court process, or if the accused has accepted guilt and is willing to
assume responsibility for the harm they have done to society and to the victim(s).
The aim of a sentencing circle is to shift the process of sentencing from punishment
to restoration of social relationships and responsibility. It provides a new alternative
for courts to incarceration. The sentencing circle proves an opportunity to start the
healing process for both the offender and the victim.
How does it work?
The offender is presented with the impact of their actions in front of respected
community members, elders, peers, family and the victim and their family,
stimulating an opportunity for real communication, increased mutual understanding
and sustainable change.71 Officials such as a judge, lawyers for the prosecution and
defence, and arresting police officer may also be present, but although the judge
may intervene to guide the discussion and elicit responses from specific individuals
present, the emphasis is very much on the participants to lead the discussions. The
process can last all day and each person present (up to 20 or more) is given equal
opportunity to give their opinion in turn, going around the circle as many times as
necessary in order to come to a mutually agreed settlement, usually involving
apology and reparation. Cases have been reported where, at the end of a sentencing
circle, as a result of the background circumstances becoming known, the initially
hostile family of the victim have actually been moved to offer help to the offender.
Is it suitable for street children?
The suitability of this process to street children in complex and socially fragmented
urban settings was discussed during the Consortium for Street Children
International Workshop on Street Children and Juvenile Justice, 14-18 July 2003,
London, in response to watching a video of a ‘mock’ sentencing circle based on the
Canadian model. Workshop participants indicated that alternative supportive
individuals would need to be identified in the case of street children who may not
have the requisite family members or supportive adults to attend the sentencing
circle. The suitability of the process would therefore depend once again on
relationship-building and tapping into street children’s self-defined support
structures – for example, including their friends and peers. Questions were also
raised about how well particularly vulnerable, troubled or less articulate children
would perform in the sentencing circle process which relies heavily on verbal
communication (although there is no reason why this couldn’t be adapted to
incorporate more child-friendly processes such as the use of drawings etc.)
Participants from Pakistan and the Philippines highlighted additional factors
(differences in gender and social status) which might potentially complicate this
process in certain communities. Participants from Nigeria highlighted the
difficulties of implementing systems such as this and mediation in cities like Lagos
that lack basic infrastructure and support systems. However, the potential
restorative and relationship-building benefits make this an option worth
considering.
7
69 Ely, P. and Stanley, C., The French
Alternative: Delinquency, Prevention and Child
Protection in France, an occasional paper
published by NACRO, cited in Giles, Prof. G.W.,
Turbulent Transitions, 2002, p.305.
70 Martin, F.M. and Murray, K., The Scottish
Juvenile Justice System, SA Press, Edinburgh,
cited in ibid, p.305.
71
http://www.usask.ca/nativelaw/publications/jah
/circle.html
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EXAMPLES OF SHORT AND LONG TERM NON-CUSTODIAL MEASURES
SHORT-TERM AND LONGER-TERM DIVERSION INTERVENTIONS - THE
NATIONAL INSTITUTE FOR CRIME PREVENTION AND REHABILITATION OF
OFFENDERS (NICRO), SOUTH AFRICA 72
PROJECT EXAMPLE
Along with lobbying and training, the NGO NICRO has set up a range of diversionary
alternatives including short term interventions and longer term intensive
interventions:
Short term
• Youth Empowerment Scheme (YES) programmes: a 6-session life-skills training
programme focusing on issues important to young people, and encouraging
young people to be accountable for their actions. Parents or guardians are
present where possible at the first and last of the weekly sessions, and young
people explore ways of reducing the possibility of recommitting offences. An
estimated 17,670 young people took part in the programme from 1996-1998.
NICRO also runs Family Group Conferencing (see below for more details on
FGC).
PROJECT EXAMPLE
Longer term
• ‘The Journey’: a high impact programme for young people who need intensive
and long-term intervention. It includes at least one residential workshop and a
wilderness experience. Young people receive support from mentors in their
communities. The programme runs over a period of 6 months to a year and 200
young people participated during 1996.
COMMUNITY REMAND PROJECTS IN THE UK - NACRO
These programmes offer courts an alternative to remanding a young offender in prison
or placing them in care by offering to support them in the community. Support can
range from setting-up training to arranging treatment for drug abuse or helping
resolve family conflicts. The projects also run a mentoring scheme pairing young
people with volunteer adult mentors who are recruited from the local community. 73
EXAMPLE OF COMPREHENSIVE REFORM IN RELATION
TO ALTERNATIVES TO DETENTION
72 ‘Diversion from courts or prison: The National
Institute for Crime Prevention and Rehabilitation
of Offenders (NICRO), South Africa’, Petty, C. and
Brown, M. (eds), Justice for Children, 1998, pp.
58-59. “Although the diversionary measures
being developed by NICRO are highly relevant in
the South African context, it is unlikely that public
service budgets would stretch to these types of
measures in other African countries”.
73
http://www.nacro.org.uk/services/youthcrime.htm
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PROJECT EXAMPLE
JUVENILE DETENTION ALTERNATIVES INITIATIVE (JDAI) - FLORIDA, USA
Launched in December 1992 by the Annie E. Casey Foundation, JDAI was a multiyear, multi-site project “to demonstrate that jurisdictions can establish more
effective and efficient systems to accomplish the purposes of juvenile detention”.
The project was intended to replicate successful work in Broward County, Florida,
that had transformed an extremely crowded, dangerous and costly detention
operation. This was achieved through inter-agency collaboration and data-driven
policies and programmes that proved that it is possible to reduce the numbers of
children behind bars without sacrificing public safety or court appearance rates.
The findings of the JDAI project have been compiled into a series of twelve
publications under the title Pathways to Juvenile Detention Reform. Each
publication examines, in detail, a different aspect of the project, drawing out a
series of underlying principles, lessons learned and tips on ‘getting started’ for
others interested in developing alternatives to detention. Although based on the
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PROJECT EXAMPLE
experience of a Northern country, the lessons learned, helpful advice and practical
suggestions included in the documentation are nevertheless of great interest to all
in this field and may spark ideas for adaptation more suitable to different country
contexts.
For example, the series reproduces copies of various ‘risk assessment instruments’
used at the admissions / ‘gate-keeping’ stage of the justice system: these tools help
to channel individual children through the most suitable processing option available
(such as community service, intensive supervision, residential or non-residential
detention) based on a ‘points’ system that takes into consideration the seriousness
of the offence, the child’s individual circumstances and any mitigating factors
through a simple, often one-page, questionnaire. It also discusses – amongst other
things - issues such as the challenges of changing political environments, the
impact of public opinion on justice reform and different levels of community
supervision.
Titles in the Pathways to Juvenile Detention Reform series are:
•
•
•
•
•
•
•
•
•
•
•
•
•
Overview: The JDAI Story: Building a Better Juvenile Detention System
Planning for Juvenile Detention Reforms: A Structured Approach
Collaboration and Leadership in Juvenile Detention Reform
Controlling the Front Gates: Effective Admissions Policies and Practices
Consider the Alternatives: Planning and Implementing Detention Alternatives
Reducing Unnecessary Delay: Innovations in Case Processing
Improving Conditions of Confinement in Secure Juvenile Detention Centres
By the Numbers: The Role of Data and Information in Detention Reform
Ideas and Ideals to Reduce Disproportionate Detention of Minority Youth
Special Detention Cases: Strategies for Handling Difficult Populations
Changing Roles and Relationships in Detention Reform
Promoting and Sustaining Detention Reforms
Replicating Detention Reforms: Lessons from the Florida Detention Initiative
Copies and further information are available from: The Annie E. Casey Foundation,
701 St. Paul Street, Baltimore, MD 21202. www.aecf.org
‘OPEN PRISONS’- ANKARA REFORMATORY, TURKEY 74
PROJECT EXAMPLE
In the closed prison I felt very withdrawn and anti-social,
but here it’s much easier to talk to people. This place has
changed me, the people here really care. They show us
understanding, and in return we show them….respect.
7
(14-YEAR-OLD BOY).
On the understanding that detention is still required as a sentencing option in a
minority of serious cases, the Ankara Reformatory has been described as the
“most effective child prison the [documentary film Kids Behind Bars] found
anywhere in the world.” Based on a philosophy of integration rather than isolation,
as of 2001, only 3% of those released from the Ankara Reformatory had been
reconvicted of an offence within four years (compared to 84% of children in the UK
released from Young Offenders Institutions within two years). More than half of the
children leave prison every day, unaccompanied, to attend local schools and go to
jobs in local businesses. There is nothing to stop the children escaping, should
they choose to do so: there are no perimeter fences or guards. Yet very few run
away as the conditions and opportunities available in the open prison are so
preferable to those in closed prisons (where they would immediately be sent if recaptured) and, in many cases, to life outside. Conditions are described as “simple
74 Based on footage from Blewett, K. and
Woods, B., Kids Behind Bars [film], True Vision
productions, 2001 and their supporting feature
article in Just Right: Kids Behind Bars (special
issue), Jubilee Action, Autumn 2001, pp.8-10.
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PROJECT EXAMPLE
but very pleasant”. Primary level classes are held on site, whilst secondary
standard children attend regular school.
According to a Turkish law passed in 1971, any business with over 50 employees is
required to ensure that 3% of the workforce are ex-offenders and so boys over the
age of 15 (official school leaving age) are found placements in local factories,
depending on their skills, or trained in a craft at the reformatory. Anything they
make during their classes (such as clocks, ceramics and stained glass) is sold to
the community through regular craft fairs with the profits returned directly to the
boy who made the item in the first place. Those with jobs get to continue their
employment on release and to move into shared group accommodation. The
Reformatory also arranges regular trips to football matches, the theatre, TV studios,
the cinema and to museums.
Despite the serious nature of most of the offences of the boys in the Reformatory
(more than half serving sentences of over five years for murder or serious sex
offences), the local community not only does not object to the institution, but
instead actively supports it through voluntary teaching and offering sports and
crafts skills. “The overall effect is that these boys are not isolated from society,
instead they are probably far more integrated into society than they were when
they were living at home.”
According to Birhan, a 14-year-old in Ankara Reformatory: “In the closed prison it’s
easy to get bad habits. They teach you to smoke, take heroin, steal, stuff like that. If
you stay there long enough you’ll learn all these habits and then continue them
outside. But here I’ve learnt to be a man. I’ve learnt to respect myself, and respect
other people.”
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Chapter summary
In spite of the particular difficulties involved in working with street children,
reform is possible through appreciating and enhancing children’s resiliency and
through building relationships – particularly in the community - which
strengthen networks of support for them. Children’s participation is essential to
the reform process, working with them to understand and expand choices, and
empower them to make those choices.
Prevention as a whole is crucial to being able to systematically address the socioeconomic and psychosocial problems faced by children and young people which
contribute to street migration and actual or perceived conflict with the law. The
examples in this chapter indicate the importance of education, structured
activities, individual and family support, coordination and a combination of macrolevel strategies as well as targeted interventions. It is particularly important to
ensure that such interventions genuinely reach those most at-risk, especially
street children who are already marginalized in relation to the social structures
within which traditional prevention programmes are oriented.
Separation of criminal justice and social welfare systems: The majority of
children in some countries should not even be in the criminal justice system in
the first place and the following steps are needed: strengthen social welfare
departments; improve cooperation and collaboration between the two systems;
ensure that justice system personnel such as the police are sensitised and
trained to distinguish between, and correctly deal with, different categories of
children (in actual conflict with the law, in perceived conflict with the law and in
need of care and protection).
Diversion and alternatives to detention: Street children may well not qualify for
many diversion options in the first place given their lack of ties to responsible
7
adults / guardians and stable residential environments which are pre-requisites
for the majority of pre-trial diversion options. It is obvious that more creative
approaches will be necessary to implement pre-trial diversion programmes and
alternatives to detention that meet the needs of street children to ensure that they
are able to benefit from restorative justice options along with other children, and
that they are not simply locked up for lack of innovative approaches. Success in
this area depends on relationship-building with the community. Despite the
obstacles faced, the examples in this chapter go some way to demonstrating that
such programmes are feasible, even for street children in complex urban settings,
although much work remains to be done in this area.
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8
RECOMMENDATIONS
Chapter overview
•
Starts with a brief summary of the key messages of the book
and emphasises how each of us has an important role to play
in the implementation of the changes needed for reform.
•
Gives general and detailed recommendations for all actors
and all stages of the juvenile justice system.
146
Chapter 8: Recomendations
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CONCLUSION
I wish that our community and government would
love us and guide us and not be ashamed of us.1
I hope they would listen to our views and concerns 2
As has been demonstrated throughout this book, and in particular based on the
experiences of the children related in Chapter 6, urgent reform of social welfare and
criminal justice systems is needed in order to promote and protect the human rights
of street children.
It has been proposed in Chapter 2 that reform should be based on the three part
strategy of:
1
a holistic, child rights-based approach
2
with a focus on the five concepts of: an individualised approach, choices,
relationship-building, the role of the community, and children’s resiliency and
their peer relationships
3
in the four priority areas of prevention (of street migration and of first-time and
re-offending), separation of the criminal justice and social welfare systems,
The particular problems faced by children in the criminal justice system who lack
stable accommodation and traditional social support structures have been highlighted:
“When children break the law in the current environment, without family and
neighbourhood support structures, the child is disempowered, minorities are
disempowered, communities and parents are disempowered. […] Denied a childcentred justice infrastructure with qualified gate-keepers and mediators, abused,
exploited or neglected children have an easy road to acquiring a criminal record.”3 As
outlined in Chapter 2, the role of the community – with all of the diverse actors that
entails - is therefore essential in reform. However, in spite of the challenges faced,
successful projects have nevertheless been illustrated which rely on the key issues of
relationship building with the police and in the community in order to develop
alternative support structures for street children.
As part of the community, reform is therefore the responsibility of everyone: “The
issue of street children goes beyond our common perception of them as homeless,
hungry, and troublesome children living in the streets. Beyond societal variables and
factors, their world, like ours, is a complex combination of issues. In understanding the
plight of street children and in realizing that it is a public issue, we have to remember
that they are children. Why is their plight a public issue? All children have the right to
be given all the opportunities that will help develop their potentials and grow into
well-rounded and secure individuals. A child’s situation in the street and / or
commission of crimes does not mean an exemption from this right or any of their
fundamental rights.” 4
1 Child participants quoted in UP CIDS PST,
2 Ibid, p.17.
“Realising that we are part of the problem and the solution: An
understanding of the psychosocial needs of children is not supposed to be
limited to the realm of academia, law enforcers, judges, lawyers, and social
workers. It is for everyone. We are all part of the last, largest and most important
pillar, and without us, even the most earnest efforts for a better future for all our
children will be unsuccessful.” 5
March 2002, p.25.
Quezon City, UP CIDS PST and CSC, 2003, pp.
28-29.
5 Ibid, p.36.
147
8
6 See also specific recommendations for
different stages of the system.
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GENERAL RECOMMENDATIONS6
The following general recommendations apply mainly to governments, but
usually in partnership with the other actors in the justice system, including
police, social services, probation, lawyers, judiciary, staff in institutions,
community – including NGOs, media and academics. They are relevant / of
interest to all actors in the system. The specific recommendations for different
stages of the system are shown in a following table, indicating specific actors’
responsibilities.
Because these general recommendations apply to many actors it is important that
they do not ‘get lost’ through people ‘passing the buck’. Governments are legally
bound to take a lead in reform in line with their international obligations under
the UN Convention on the Rights of the Child and other instruments. However, it
is everyone’s responsibility to ensure that they do so, working collaboratively and
constructively together to ‘put the justice back into the justice system’.
LEGISLATION AND POLICY
•
Legislation: Urgently amend national legislation in line with the UN Convention on
the Rights of the Child and other UN guidelines on juvenile justice (including the
Riyadh Guidelines, Beijing Rules, and JDLs), including:
o ensure that children below the age of 18 are accorded the protection of
separate justice provisions and are not treated as adults;
o de-criminalise ‘vagrancy’, ‘loitering’, victims of commercial sexual exploitation and
status offences such as truancy and ‘running away’;
o set the minimum age of criminal responsibility (not to be confused with the
minimum age of imprisonment) at a suitable level, with due regard for the protection
of all children, above and below that age, according to comprehensive implementation
of international human rights standards, and with special regard for children who may
end up in the custodial system through welfare or administrative rather than criminal
provisions;
o outlaw the death penalty for crimes committed by children under the age of 18 at
the time of the offence and commute any existing death sentences passed on
children.
o ensure the protection of all children, regardless of gender, race, ethnicity, sexuality,
disability and social, economic or any other status from discriminatory laws and
practices (e.g. laws that discriminate against girls in relation to sexual behaviour).
In addition to amending legislation, urgently develop, implement and monitor childcentred and child rights-based policies and procedures in the following key areas:
148
•
Prevention: Orient political will and allocate resources to the structured
development of child rights-based comprehensive prevention policies as outlined in
UN Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines), 1990.
•
Separation of social welfare and criminal justice systems: Separate the systems
to avoid processing children who are not in conflict with the law through the criminal
justice system.
•
Diversion: Amend legislation and practices and allocate resources to ensure that
arrest and detention are only used as a last resort. Promote diversion programmes as
an additional procedural mechanism to allow / propose exit points at each stage of
traditional criminal proceedings, with an emphasis on restorative justice and child
rights-friendly traditional and non-formal justice systems. Immediately end the
practice of lengthy pre-trial detention / remand.
•
Alternatives to detention: Prioritise the use of non-custodial sentencing options as
measures at the disposal of the judiciary (to constitute diversion from imprisonment,
but not necessarily diversion from criminal proceedings) and implement immediate
review of children currently in detention with a view to withdrawing them from
detention for placement in alternative programmes.
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GENERAL RECOMMENDATIONS
•
Immediately stop the abuse and maltreatment of children by law enforcement and
other justice system personnel and safeguard their human rights. Protect children on
the street and in custody from torture and ill-treatment, including rape and sexual
abuse, whether by officials or other detainees.
•
Guarantee immediate investigations into any alleged abuse and ill-treatment, identify
those responsible, bring them before a civil competent and impartial tribunal and
apply the penal, civil and/or administrative sanctions provided by law and according
to international human rights standards.
•
Ensure adequate budget allocation to social services, probation and programmes
focusing on prevention, diversion and alternatives to detention.
•
Develop and implement screening procedures (including psychological profiling) in
the recruitment of all juvenile justice system personnel, including all police and
military law enforcement personnel (not just those specialised in juvenile justice).
•
Establish and enforce stricter time limits for all actors in the justice process in order to
speed up the processing of cases involving children in conflict with the law.
•
Ensure proper remuneration for justice system personnel to increase professional
motivation to work with children and combat bribery and corruption.
•
Conduct a mass sensitisation campaign amongst all personnel in the social welfare and
criminal justice systems (police, social services, probation, lawyers, judiciary, staff in
institutions), as well as civil society and children themselves, regarding child rights
legislation and practices.
•
Make children’s participation central to reform processes. Create spaces for children’s
voices to be heard at all levels.
•
Facilitate closer and stronger communication and coordination between all actors and
sectors in the criminal justice and social welfare systems, including among central and
local government agencies, and between government agencies and civil society.
TRAINING
•
All juvenile justice system personnel (police, social services, probation, lawyers,
judiciary, staff in prisons and institutions), should receive rigorous initial training
school and periodic in-service training in human rights, children's rights, and relations
with street children. Such training should include:
o Awareness and understanding of the principles of human rights and child rights
(especially the best interests of the child, non-discrimination, right to life, survival and
development, children’s participation and resourcing for economic, social and cultural
rights);
o Awareness and understanding of international and local legal frameworks and
guidelines in observing the rights of children and the protection they require from
local enforcement;
o Explicit definitions of what constitutes abusive behaviour and how to avoid and
report it (e.g. stealing, extortion, soliciting bribes, soliciting sex, sexual assault, physical
beatings, verbal abuse, degrading / humiliating treatment and illegal detention);
o Non-violent dispute resolution / mediation and communication skills;
o Diversion options and the use of detention as a last resort only for the shortest
possible period of time’;
o Referral systems to social welfare and civil society organizations;
o Importance of speedy processing of children’s cases;
o Compliance with due process and importance of informing children and their
families / guardians;
o The importance and value of child participation (soliciting and taking into account
children’s views).
8
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MONITORING AND EVALUATION
•
Establish appropriate monitoring systems of both the government and
independent, non-governmental organisations. Monitors should be permitted to
conduct confidential interviews with detained children of their choosing, with
the consent of the children involved. Such monitoring should include making
unannounced inspections of all detention facilities, including police cells, and
should be given the authority and means to intervene whenever there are
reasonable grounds to believe that abuses have been committed.
•
Establish regular evaluation mechanisms for both the component parts of the
system and how they function as a whole, identifying and addressing – through
a child rights-based approach, priority areas for reform.
COMPLAINT PROCEDURES
•
Complaints regarding mistreatment of children by the police or other authorities
should be investigated promptly, thoroughly and independently and violators
must be disciplined and/or prosecuted to the fullest extent of the law in order to
challenge cultures of impunity that perpetuate violence and human rights
violations of street children and children in the criminal justice system.
Complaint mechanisms must be consistent with international standards (e.g.
Paris Principles, CRC General Comment on National Human Rights Institutions).
•
Establish a complaint system that allows street children and children in the criminal
justice system to make confidential complaints – without fear of redress - to facility
directors, to nominated national child rights representatives / ombudsmen, and/or
to other appropriate national or international agencies. The system should ensure
that all complaints are investigated and responded to promptly.
•
During investigations (which often last for years or are open-ended), either
suspend alleged perpetrators or move them to posts where they have no contact
with children.
•
Establish, publicise and support toll-free child helpline numbers which are
adequately staffed by trained personnel and which are available 24 hours a day.
Any child or interested party, including police officers, should be able to call the
number to report an incident of abuse or obtain information regarding services
available to street children and children in the criminal justice system.
RESEARCH AND DOCUMENTATION
150
•
Collect and disseminate / make widely available (within government, civil society
and the UN Committee on the Rights of the Child) statistical data regarding children
in the criminal justice system. Such information should be disaggregated by gender,
age and geographical location and should include: number of children in detention;
the reason for detention; the length of time in detention; the disposition of the case
(i.e. measures imposed by judge); the frequency of review of these measures; family
history; medical condition, including any substance addiction or abuse; previous
detentions; and any complaints or concerns noted by the child.
•
Ensure that comprehensive official statistics are properly maintained. These should
be used to monitor and evaluate implementation of policy.
•
Promote and/or undertake, in association with academic and civil society
institutions: longitudinal research on effective crime prevention and diversion
strategies; participatory research involving the community and children and young
people into crime prevention and rehabilitation in the community, focusing on
existing structures (local associations, youth and church groups); research on public
perceptions of juvenile offending in order to identify appropriate ‘entry points’ for
influencing public opinion.
•
3/6/04
1:35 pm
Page 151
Promote and/or undertake, in association with academic and civil society
institutions, cost / benefit analyses of investing in comprehensive child protection
systems at local and national levels in order to develop a more accurate picture of
the economic and social costs of failure to invest in prevention and protection
programmes.
MEDIA
•
Develop partnerships with the media to promote advocacy messages regarding
child rights, restorative justice and the importance of prevention, diversion and
alternatives to detention; to publicise positive outcomes with young offenders; to
encourage community-level support for vulnerable children and young people.
•
Undertake media training on the effects of criminalising and discriminatory
references and stories regarding street children, children in conflict with the law
and other marginalized groups of children such as ethnic minorities. Promote
responsible, gender-sensitive and unbiased reporting that involves the voices and
stories of children in their own words (subject to child protection guidelines).
RECOMMENDATIONS ACCORDING TO STAGES OF THE SYSTEM
COMMUNITY
MEDIA
ACADEMICS
UN
DONORS
PROBATION &
CORRECTION
SOCIAL
WELFARE
LAWYERS &
JUDICIARY
POLICE
GOVERNMENT
(Recommendations from the street children involved in the CSC
Street Children and Juvenile Justice Project are shown in italics).
X
X
X
X
X
X
X
X
X
X
PREVENTION
Advocate awareness and implementation of the UN Convention
on the Rights of the Child
X
Rigorously examine states’ progress towards respecting the rights
of children in conflict with the law and encourage a single-minded
focus on rehabilitation and re-integration, not criminalisation,
for all children up to the age of 18
Devise a methodology to analyze the child protection system
at local levels in order to assess risk and protective factors and
build better prevention strategies and programmes
X
Organize / institutionalize community-based Councils for the
Protection of Children in each city / town / village
X
X
Train residents / leaders as community child support advocates
against child abuse
X
X
Programmes should be regularly monitored to ensure that
prevention strategies reflect the changing situations of street
children and crime
X
Children should be sensitised on their rights and how to redress
abuse, and encouraged to speak up when they are abused
X
Child helpline telephone numbers should be developed and made
accessible to children in distress
X
Poverty reduction to be addressed through employment generation X
for families and family-friendly small-funds management training
and micro-lending programmes. / Increased government and donor
support for poverty alleviation programmes that incorporate
investment in community social capital (including psychosocial
support) as well as economic capital
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
8
X
X
151
DONORS
UN
ACADEMICS
MEDIA
COMMUNITY
PROBATION &
CORRECTION
SOCIAL
WELFARE
Page 152
LAWYERS &
JUDICIARY
1:35 pm
POLICE
3/6/04
GOVERNMENT
PREVENTION (continued)
Government should provide free and compulsory quality education
or vocational skills training to children who have no family and
help poor parents with financial support
X
X
Government should make the provision of welfare and social
or vocational skills training to children who have no family and
security support top priority in the communities
X
X
Political and financial support for the widespread implementation
at community level of participatory parenting and teaching skills
programmes that address the emotional consequences of violence
and non-communication
X
X
X
X
Domesticate and enforce international law and policies in the local
legal system outlawing archaic and harmful child-rearing practices
in order to stem child abuse which drives children into the streets.
Hold parents, teachers and other caregivers responsible for cruelty
to children in the home, school, etc. Protect children from cruelty
and torture by parents and teacher
X
X
X
X
Children at risk should be identified as early as possible and
receive special attention
X
X
X
Provision of adequate counselling to families as a preventive
measure to curtail inflow of children into the street / Employ
more child guidance-counsellors at all levels of education to
provide first hand counselling services to children in schools
X
X
X
Encourage child-friendly alternatives such as fostering and
adoption in appropriate cases for children who have no family.
Provide children who lack accommodation with shelter, and
particularly if they do not wish to live with step-parents
X
X
X
Recreation facilities and support centers should be provided in
communities for prevention of youth crime
X
X
X
X
The police need to build stronger relationships with local communities
X
X
X
Incorporation into primary school curricula of life skills education
which includes non-violent conflict resolution techniques such as
peer mediation
X
State welfare departments and local governments should
establish street outreaches through which they can monitor and
prevent the entry of children into the streets
X
NGOs, civil society organisation and voluntary bodies should build
the capacity of children through training to reach other street
children through peer influence and counselling. Children should
participate in peer counselling programmes designed particularly
for children already on the street.
X
Protect children from harmful employment, prostitution, neglect
and abuses of all kinds.
X
152
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
Children in need of care and protection must not be processed
through the criminal justice system but dealt with by the social
welfare department. This requires good communication between
the services and adequate resourcing of social welfare
departments
X
X
X
X
Wherever possible, children in conflict with the law should be
diverted from the formal criminal justice system thus avoiding
arrest and detention in favour of child-friendly restorative
alternatives (mediation, warnings, community service, diversion
to a civil society organisation etc.)
X
X
X
X
If arrest is unavoidable, there must be an absolute prohibition on
bribery, extortion and the use of physical, psychological and
sexual violence, including verbal abuse and humiliation; use of
restraints only as a last resort; humane transportation to police
station etc. Avoid transporting children in car boot; Train police
to become child friendly; Do not use torture, threats or instilling
fear to extract false evidence from the children- such evidence
should not be acceptable in court of law; Do not take valuables
from children when they are being arrested or once they are
arrested. During arrest and interrogation, pictures should not
be taken, particularly those wherein the children are made to
pose in humiliating and degrading manner depicting their alleged
crimes; Police officers found to have violated children’s rights
should be dismissed and punished.
X
X
X
If arrest is not avoidable, due process must be followed at all times
including: children should be informed of their rights; parents /
guardians and the social welfare department should be promptly
informed of the arrest; no evidence should be taken from a child in
the absence of a parent, guardian or social worker; ensure proper
documentation and record-keeping – especially with regard to the
child’s age; emphasis on speedy processing (child should be
brought before a juvenile magistrate within 48 hours of arrest –
within 24 hours if possible); access to free legal assistance; the
right for the child to be heard etc. Police should investigate the
case of the alleged crime properly; Investigations should be done
in the presence of a guardian or, in their absence, a service
provider should be present. Authorities must follow the right
process in arresting children and the proper procedures in
investigation. This naturally includes the non-maltreatment or
abuse of children and the safeguarding of their fundamental rights
X
X
X
X
X
X
Establish children’s desks at police stations staffed by specially
trained and sensitive personnel to facilitate diversion or process
children in a child-friendly way
X
X
X
X
X
X
DONORS
X
UN
X
ACADEMICS
LAWYERS &
JUDICIARY
X
SOCIAL
WELFARE
POLICE
Arrests must be made lawfully and not as the result of
discrimination or for the purposes of harassment, extortion,
‘street clearing’, for status offences, ‘vagrancy’ or of victims of
commercial sexual exploitation etc. Children should not be
accused falsely; prove the case first
MEDIA
Page 153
COMMUNITY
1:35 pm
PROBATION &
CORRECTION
3/6/04
GOVERNMENT
X
X
ARREST / PRE-TRIAL DETENTION / REMAND
X
X
X
X
X
8
153
X
X
X
Remand: Before remanding a juvenile, the court should satisfy
itself that satisfactory screening has taken place and that all
diversion options have been exhausted. A pre-trial inquiry should
be incorporated in the procedure of dealing with juveniles. Where
possible, children should await trial with their parents, guardians or
other supporters. Prison / remand home authorities should check the
validity of remand warrants and authenticity of signatures on them.
There must be clear time limits (as short as possible) set on the
period that a child can be kept on remand (reduce the number of
days for remanding children). Courts should ensure that these
limitations are adhered to and followed. Conditions on remand must
be in keeping with human rights standards
X
X
X
X
X
X
Diversion programmes should be offered by social welfare, NGOs,
retired teachers, nurses or other suitable community players and
should take into account the needs of the victim, the offender and
the community and should be restorative in approach
X
X
X
X
X
X
X
An assessment of every case should be aimed at diverting all
cases where possible to community-based pre-trial diversion
programmes; The assessment should include the prosecutor, a
probation office or social worker, and parents, guardians or
community members. Detaining children particularly for minor
offences is cruel, and should be removed as an option. Foster
homes rather than institutional homes are beneficial, and should
be made available to street children in conflict with the law
X
X
X
X
X
X
X
Efforts must be made through targeted programmes on mentoring
and relationship building to ensure that street children in particular
have access to the range of diversion options available, even in the
absence of stable ‘family’ ties
X
X
X
DONORS
X
UN
X
ACADEMICS
X
MEDIA
COMMUNITY
Children should not be detained in police cells prior to appearance
before a juvenile magistrate except as a last resort. If this is
unavoidable, human rights standards must be met, e.g. There
should be separate cells for children - children should not share
cells with adults; Provide good and enough food to the children at
the police cell; Ensure that the cells are clean and ventilated and
not overcrowded; Separate those who are ill from the rest and
provide them with medical attention; Police officers who seek
sexual favours from girls for whatever reasons should be charged
in a court of law; Use of buckets should end - construct toilets at
police cells; Prisoners should be allowed and enabled to take a bath.
GOVERNMENT
PROBATION &
CORRECTION
Page 154
SOCIAL
WELFARE
1:35 pm
LAWYERS &
JUDICIARY
3/6/04
POLICE
ARREST / PRE-TRIAL DETENTION / REMAND (continued)
DIVERSION
Establish whether community-based informal and traditional justice X
mechanisms exist and if so, whether they are in conformity with
international human rights standards and might therefore have a
role in diversion
Undertake research on the extent to which children’s rights are
protected in both the formal and any informal systems; Examine the
potential for interaction between formal and non-formal systems in
order to develop policy recommendations that capitalise on
opportunities for incorporating the principles of reconciliation and
restitution into the formal justice system.
X
Provide stakeholders (police, parents, community, social welfare
officers, courts, judicial officers, etc) with training in new skills
required for diversion and also to standard procedural safeguards
for child protection
X
154
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
Court procedures should be child-friendly. (The creation of a
child-sensitive environment in the courtroom, questions should
be asked slowly and clearly in a language understood by the
child, no black robes, hearings held in camera, magistrates
should be friendly and patient to the children etc.)
X
X
Magistrates should ensure the children’s right to participate in
their own defence. Prosecutors should follow the processes
during hearings, with the children given the chance to speak or
be heard.
X
X
Juvenile magistrates, lawyers and other court officials should
receive special training on child rights and restorative justice
(especially on the importance of diversion and alternatives to
detention). Judges in particular are asked to order lighter
sentences for children. In the handing down of the sentence, the
age of the child at the time of the commission should be
considered and not the present age of the accused.
X
X
Prosecutors and judges should facilitate a speedy trial.
X
X
Ensure adequate remuneration of juvenile judges and lawyers to
provide incentive to work in this field / reduce motivation for
corruption
X
X
Children should be supported throughout the court process by
social workers or counsellors
X
X
Magistrates should explore options to reduce time spent by
children on remand / in pre-trial detention – e.g. through using
‘mobile courts’ / convening court in prisons / remand homes
where this would result in cases being dealt with more speedily
X
X
Magistrates should ensure that cases are conclusively investigated
before passing judgment
X
X
DONORS
X
UN
X
ACADEMICS
X
MEDIA
COMMUNITY
X
GOVERNMENT
PROBATION &
CORRECTION
Page 155
SOCIAL
WELFARE
1:35 pm
LAWYERS &
JUDICIARY
3/6/04
POLICE
TRIAL / HEARING
All children should be provided with legal representation when
they appear in court
X
Separate courts for children should be established staffed by
specially trained personnel. Where the establishment of a
separate building is not possible, hearings involving children
should take place in a separate room on a separate day, but still
with specially trained personnel
X
X
X
X
8
155
MEDIA
X
X
X
X
DONORS
COMMUNITY
X
UN
PROBATION &
CORRECTION
X
ACADEMICS
SOCIAL
WELFARE
Page 156
LAWYERS &
JUDICIARY
1:35 pm
POLICE
3/6/04
GOVERNMENT
DETENTION
(In cases only where all diversion options and alternatives to
detention have been exhausted)
Immediately end torture and violence in police cells, detention
centres, remand homes, approved schools, prisons etc. This is
paramount, but cannot be addressed without examining the levels
of staffing, training of staff, and employee conditions. Staff found
guilty of torture or mistreatment should be brought to justice.
Punish staff who seek sexual favours from the children
X
Strict regulations concerning non-violent and non-humiliating
discipline must be drawn up and monitored. Teachers to stop
administering heavy punishment on children. Discipline of
children generally should be consistent with child’s rights and
dignity. Under no circumstances should isolation be used as a
punitive measure. Children should be informed of the internal
rules of the facilities to which they are committed and their
rights and obligations immediately upon entry. The rules of the
institution should be made available to children upon request and
posted in highly visible places
X
Ensure that conditions in detention comply with international
standards with regards to separation on the grounds of age and
convicted status, hygiene, sanitation, space, ventilation, food,
clothing, adequate sleeping materials etc Provides remand homes
with basic facilities e.g. mattresses, blankets, sanitary facilities,
and other social amenities. Make the compound clean. Ensure
proper diet; Repair toilets and construct new ones where they are
not adequate or do not exist at all; Provide the homes with enough
utensils. Provide children with at least two pairs of uniform;
Provide mattresses, blankets, sheets, shoes and clothes to the
children. Provide good and sufficient food at the remand home.
Improve the facilities at the remand homes and make them child
friendly
X
Resources must be immediately allocated to the recruitment and
training of an adequate number of teachers, trainers, health and
social workers, and psychologists for individualised rehabilitation
of children / Provide adequate professional in-centre
counselling and other therapy, tailored towards long-term positive
development in institutionalised children
X
X
X
X
X
X
X
X
Government must allocate adequate budgetary funds for the
welfare of children who are institutionalised
X
X
X
Children’s opinions should be incorporated in the running of the
homes
X
X
X
Where detention is unavoidable, encourage greater contact
between the child and their family and friends when it is in the
child’s best interest, and wherever possible locate children
in facilities closest to their homes. (Give children permission to
visit their relatives/guardians)
X
X
X
Increase access for child detainees to education, rehabilitation,
skills development (including life skills), drug rehabilitation, and
sporting and recreational activities
X
X
X
Vocational skills taught to children in rehabilitation should be
relevant, of good quality, competitive and linked to market needs,
to ensure that children are well adjusted and have a chance to
find employment in the future
X
X
X
156
X
X
X
X
X
X
UN
DONORS
ACADEMICS
MEDIA
COMMUNITY
PROBATION &
CORRECTION
SOCIAL
WELFARE
Page 157
LAWYERS &
JUDICIARY
1:35 pm
POLICE
3/6/04
GOVERNMENT
X
X
X
X
X
X
DETENTION (continued)
Ensure safe, adequate transport between detention facilities and
court to avoid delay in processing of cases. (Government should
provide transport buses for homes)
X
Ensure specialist comprehensive initial and in-service training on
child rights, including non-violent communication and discipline
skills for all staff in institutions. Personnel for children’s services
should be people who are trained and love children and not just
people who are looking for a job to do
X
Maintain a transparent policy throughout the system with regard to
official records for communication, monitoring and evaluation
purposes
X
Consider establishing a ‘Board of Visitors’ system made up of
independent members of the community, civil society
organizations and professionals to routinely carry out unannounced
inspection visits to children’s detention centres, police cells and
prisons
X
A child detained in any state or private facility should be
interviewed at regular pre-determined intervals by trained and
qualified government staff; their rehabilitative progress should be
assessed, and their prospects for release should be discussed fully
with them
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
REINTEGRATION
Sensitise the public on the human rights of street children in order
X
X
X
NGOs and civil society (including the family, community and
religious bodies) should actively partner with government to take
an active role in the reintegration process
X
X
X
Government should prohibit through legislation, and enforce, the
prohibition of all discrimination against ex-child detainees whether
or not in regard to employment or admission of any kind
X
X
Teach children their rights and how to fight for them
X
X
X
to combat dehumanisation and discrimination and to promote
reintegration into the community
X
8
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•
•
•
•
•
•
•
•
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ARTICLES
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
160
Abramson, B., ‘Juvenile Justice: The ‘Unwanted Child’ - Why the potential of
the Convention on the Rights of the Child is not being realized, and what we
can do about it’, August 2003
Abramson, B., ‘Two Stumbling Blocks to CRC Monitoring: the Four ‘General
Principles’ and ‘the Definition of the Child’’, September 2003
Assis Calundungo, S. de, ‘Street Children in Angola’, CEIS (Centro di
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the Children, June 1998
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the Child (CRC): Some Reflections for Hopeful Perspectives’, in Butterflies, My
Name is Today, Vol. X., No. 2, Special Issue: ‘Children in Conflict with the Law’,
2003
Feely, F., ‘Collaboration and Leadership in Juvenile Detention Reform’,
publication No. 2 in the series Pathways to Juvenile Detention Reform, Annie E.
Casey Foundation
Gannon, K., ‘Few Look out for Street Children’, Associated Press, 20 April 2000
Gebremarian, T., ‘Working with the Police in Ethiopia’, in Petty, C. and Brown,
M. (eds), Justice for Children, 1998
Inciardi, J.A. and Surratt, H.L., ‘Children in the Streets of Brazil: Drug Use,
Crime, Violence, and HIV Risks’, Substance Use and Misuse, 1997
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of Red Cross and Red Crescent Societies News, 18 September 2003
Maxwell, G. and Morris, A., ‘The New Zealand Model of Family Group
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misplaced optimism?, Alder & Wundersitz eds., Australian Institute of
Criminology, Canberra ACT, Australia 1994
Moberly, C., ‘The ‘Voluntary Separation’ of Children in Angola:
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and University College Cork, Prevention of Street Migration: Resource Pack, 1999
Muigai, S., ‘National Youth Service (NYS) will recruit Street Children at District
Level’, The East African Standard, 20 October 2003
Okagbue, I.E., ‘The Treatment of Juvenile Offenders and the Rights of the Child’
in Ayua, I.A. and Okagbue, I.E., The Rights of the Child in Nigeria, NIALS, Lagos
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Ordoñez Bustamante, Dr D., ‘Family Structure Problems, Child Mistreatment,
Street Children and Drug Use: A Community-Based Approach’, in Consortium
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Economics and Political Science, September 2002
Sinagra, L., ‘Beneath Bucharest’, City Pages.Com, 7 July 2001
Skelton, A., ‘African Focus: Juvenile Justice in Kenya’, Article 40, Vol.1 Issue 2.,
August 1999
Skelton, A., ‘International Trends in the Re-emergence of Traditional Systems’,
in Stevens, J., Access to Justice in Sub-Saharan Africa, 2000
Stumpf González, R., ‘Why Perpetuate an Old and Sad History? The Case of
FEBEM, São Paulo’, National Movement of Street Boys and Girls, Brazil,
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in Prisons’ in Butterflies, My Name is Today, Vol. X., No. 2, Special Issue:
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(eds), Justice for Children, Challenges for Policy and Practice in Sub-Saharan Africa,
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Culture’, The Guardian, 27 May 2003
Veeraraghavan, Prof. Dr. V., ‘Juvenile Violence’, in Butterflies, My Name is
Today, Vol. X., No. 2, Special Issue: ‘Children in Conflict with the Law’, 2003
DOCUMENTS AND OTHER SOURCES
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Alexandrescu, G., Romania – Working Street Children in Bucharest: A Rapid
Assessment, ILO/IPEC: Geneva, 2002
AusAID, National Project on Street Children and UNICEF, Handbook for Social
Workers and Psychologists on Psychosocial Case Management Process, Philippines,
1996
Blewett, K. and Woods, B., Kids Behind Bars [film], True Vision productions, 2001
Canadian International Development Agency, CIDA’s Action Plan on Child
Protection: Promoting the Rights of Children who Need Special Protection Measures,
June 2001
Haines, K ., Mansell, C., Shaw, R.& Goatly, R., Probation in Romania, Report 2003
Kakama, P.T., Juvenile Justice in Uganda, Save the Children, UK, paper presented
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1999
Khasiani, S.A., Kenya Country Report prepared for the Worldwide Workshop on
Youth Involvement as a Strategy for Social, Economic and Democratic
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Moore, D.B., A New Approach to Juvenile Justice: An Evaluation of Family
Conferencing in Wagga Wagga. A report to the Criminology Research Council,
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University, Riverina, Australia, 1995
Mukonda, R., Juvenile Justice Project in Namibia, Legal Assistance Centre,
Namibia, paper presented at a seminar on Juvenile Justice held in Lilongwe,
Malawi, 23 - 25 November 1999
Parry-Williams, J., Village Mediation Units in Lao PDR and their Adaptation for
Children and Young People, presentation to Consortium for Street Children
International Workshop on Street Children and Juvenile Justice, 14-18 July
2003
The Partnership for Global Good Practice (PGGP), International Standards for the
Administration of Juvenile Justice And Examples of Good Practice, February 2002
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Circumstances, Department of Social Welfare and Development, National Police
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Quezon City, Philippines, 1993
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to ‘Children Involved in Juvenile Justice Systems’, Eighth Innocenti Global
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Singh, W., Alternatives to Custody in the Caribbean: The Handling of Children who
Come into Conflict with the Law, paper presented at the Innocenti Global
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9
APPENDIX
APPENDIX 1
CONSORTIUM FOR STREET CHILDREN PROJECT: ‘PROMOTING AND PROTECTING THE
HUMAN RIGHTS OF STREET CHILDREN IN JUVENILE JUSTICE SYSTEMS’
JANUARY 2002 – DECEMBER 2003
Background
This publication is the culmination of a two-year research and advocacy project
conducted by the Consortium for Street Children in association with local partners to
examine the situation of the human rights abuses of street children in juvenile justice
systems in six countries: Kenya, Nicaragua, Nigeria, Pakistan, the Philippines and
Romania.
The current project, ‘Promoting and Protecting the Human Rights of Street Children
in Juvenile Justice Systems’, January 2002 – December 2003, was developed in
collaboration with CSC’s members and their overseas partners in order to address the
particular overlap between street children and criminal justice systems in the form of
a more proactive, coordinated and geographically distributed project.
Aims and objectives
The aim of the project is to mobilise national and international response to uphold the
human rights of street children within juvenile justice systems by examining the
situation in specific countries, identifying and highlighting key problems and working
towards child-friendly solutions.
The key objectives are:
•
To raise awareness of the specific problems faced by street children in the
context of law and order concerns at relevant national and international fora,
with the aim of diverting street children into alternatives to detention;
•
To improve cooperation and communication between NGOs, street children
and government authorities (police and judicial systems);
•
To collate information on street children within juvenile justice systems to act
as a source of information and a basis of subsequent lobbying towards:
a The adoption/adaptation of domestic juvenile justice legislation in accordance
with internationally agreed human rights standards (i.e. 1989 UN Convention
on the Rights of the Child (CRC), 1985 UN Standard Minimum Rules For The
Administration Of Juvenile Justice (Beijing Rules), 1990 UN Rules For The
Protection Of Juveniles Deprived Of Their Liberty and the UN Guidelines on
the Prevention of Juvenile Delinquency (Riyadh Guidelines);
b The implementation in practice of these standards at all stages of the juvenile
justice system, from the initial contact with the child to the pre, during and
post-trial periods;
c The establishment of independent monitoring systems to ensure continued
compliance with such legislation by all levels of the police, judiciary and social
services.
•
To identify and support NGO projects working towards the improvement of the
162
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situation of street children within juvenile justice systems and enhance the
capacity of local partner organisations.
To facilitate the participation of street children by providing them with an
opportunity to voice their concerns about their basic needs and rights.
Activities and outputs
Research was undertaken and national, multi-sector workshops were convened involving
street children themselves, civil society organisations, the police, judiciary, social and
probation services and other stakeholders to identify key obstacles to the implementation
of international human rights standards for street children in juvenile justice systems in
each country. With an emphasis on constructive dialogue and collaboration between civil
society and government, the workshops addressed issues of national relevance, examined
examples of innovative good practice in this area and outlined recommendations for
further action. The findings from each country are reproduced as a series of country
reports, available separately from www.streetchildren.org.uk.
The project helped to promote international exchange of experiences through a
workshop attended by project partners from all six countries, held in London in July
2003.1 The project findings, along with secondary research and case studies from other
countries, have been compiled into this international handbook on street children and
juvenile justice.
The following table summarises the activities undertaken by CSC partners in
each country.
COUNTRY
ACTIVITY
KENYA
National mapping matrix exercise to 5-6 20
document the various actors currently December
working in the area of juvenile justice 2002
in Kenya and the existing gaps in
research / knowledge (CRADLE)
NGO participants
National consultative workshop with
street children
(USK)
22
February
2003
41 child participants, aged 10-18 approximately 4 from each of
Kenya’s 8 provinces - of whom
16 were girls
National Workshop on Street Children
and the Juvenile Justice System
(CRADLE, USK and CSC)
6-7 March
2003
64 participants, including 7
children, representatives from
48 national and international NGOs
as well as government, donor and
media representatives
NICARAGUA
DATE
PARTICIPANTS
Primary research / data collection
May –
from 18 police delegations across
October
the country, judicial headquarters
2002
and penitentiary institutions.
Inspections of cells in both police
and penitentiary buildings. Interviews
held with adolescents in detention,
police authorities, judges and
penitentiary staff, as well as with
members of the Public Ministry,
Public Counsels for the Defence,
and NGOs
(CAN)
Consultation Forum on Juvenile
Justice
(CAN)
25-26
November
2002
86 participants (of whom 10 were
adolescents with experience of the
juvenile justice system), including
police, relevant government
ministries, NGOs and the national
media.
9
1 See report of the Consortium for Street
Children International Workshop on Street
Children and Juvenile Justice, London, 14-18
July 2003.
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COUNTRY
ACTIVITY
NIGERIA
National Workshop on the Human
2-4 June
Rights of Street Children Within the
2003
Juvenile Justice System in Nigeria:
The Case of Lagos State (HDI),
including a one-day sensitisation on
children with mental disabilities (CDC)
PAKISTAN
4 consultative workshops with street
children on “Juvenile Justice System
and Street Children- Present, Past
and Future”:
• Islamabad
• Karachi
• Lahore
• Peshawar
(AMAL)
More than 100 street children
participants with an average age of
12, of whom 7 were girls, as well
as a range of national and
9 April 2003 international organizations,
26 April 2003 ministries and law enforcing
11 May 2003 agencies.
30 May 2003
National Conference on
Children and Juvenile Justice
(AMAL)
13-14 June
2003
More than 60 participants
from different governmental
ministries including Ministry of
Law, Justice and Human Rights,
Law and Justice Commission of
Pakistan, Ministry of Youth Affairs,
Ministry of Social Welfare and
Women Development, law
enforcing agencies such as the
Police Department, Reclamation
and Probation Home Department,
Central Jail Staff Training Institute,
lawyers, probation officers and
national and international
organizations.
Regional Community Based
Workshops: Luzon Region,
Olongapo City, (PREDA)
6-7 June
2002
30 participants
National Capital Region, Manila,
(CHAP)
17-18 July
2002
28 participants
Visayas Region, Cebu City,
(FREELAVA)
28-30 June
2002
20 participants
Mindanao Region, Davao City,
(Tambayan)
12-14 July
2002
23 participants
PHILIPPINES
164
DATE
PARTICIPANTS
62 participants, of whom 12 were
children (including 6 girls), were
drawn from the Lagos State
Ministry of Youth, Sports and Social
Development, the Ministry of
Justice, the National Human Rights
Commission (NHRC), the police,
NGOs, street children, children in
remand homes and approved
schools, media, and other
stakeholders.
8 Regional Workshops with children
(of which 4 community-based and
4 in detention / rehabilitation)
Regional Workshops in Detention / 19 July
Rehabilitation:
2002
Luzon Region, Magalang Youth
Rehabilitation Center Magalang,
Pampanga (PREDA)
25 participants
National Capital Region, Manila
Youth Reception Center, Quezon City,
(CHAP)
11 participants
19 July
2002
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COUNTRY
ACTIVITY
DATE
PARTICIPANTS
PHILIPPINES
Visayas Region
Regional Rehabilitation Center for
Youth (RRCY), (FREELAVA)
22 July
2002
20 participants
Mindanao Region, Department of
Social Welfare and Development
(DSWD) Center for Drug Dependents,
Davao City, (Tambayan)
16 July
2002
20 participants
National Children’s Workshop on
Street Children and the Juvenile
Justice System
8-10 August
2002
60 peer-elected child participants
(15 from each of 4 provinces)
including children living in the
streets, former and current children
in conflict with the law.
Perceptions Questionnaire
circulated among state and
non-governmental specialists
working in the area of children in
conflict with the law and street
children in general
June –
The views of 130 street children,
October 2002 28 Probation Service Officers and
45 workers from the Child
Protection Division were collected
through questionnaires.
Interviews were then conducted with
Children and Juvenile Justice
contact with the juvenile justice
system at some time
June –
October 2002
National Workshop on Street
street children who had come into
10-12
November
2002
ROMANIA
45 participants including
government-run children’s
institutions; civil society
organizations involved in the
rehabilitation of street children;
police stations involved in the
diversion programme.
APPENDIX 2
STREET CHILDREN AND THE CONVENTION ON THE RIGHTS OF THE CHILD (CRC):
FULL TEXT OF CRC ARTICLES 37 AND 40
•
Probably no environment contributes more to potential violations of the CRC
than a childhood and youth spent outside the institutional framework of family
and school in the usually hostile environment of the streets.
•
The majority of articles in the CRC apply to street children because of their extreme
poverty and particular vulnerability to the following: violence (Art. 19), disease (Art.
24), discrimination (Art. 2), sexual abuse and exploitation (Art. 34, 32), substance
abuse (Art. 33), emotional deprivation (Art. 19, 31), exploitative and harmful child
labour (Art. 32), denial of rights within the juvenile justice system (Art. 37, 40),
arbitrary execution (Art. 6), torture (Art. 37), lack of access to education (Art. 28,
29) and healthcare (Art. 24) and lack of identity documents (Art. 7).
•
The CRC sets out a framework for protection that emphasizes the family and
community as having the main responsibility for caring for children (Art. 5, 18). The
role of the state is to support and enable families and communities to fulfill this role.
However, it is an unfortunate fact that in many cases families and communities are
not protective and nurturing. In these cases, as for children living on the streets, the
state then takes on a greater responsibility to fill the gap (Art. 20: ‘A child
temporarily or permanently deprived of his or her family environment…shall be
entitled to special protection and assistance provided by the State’).
•
9
In reality, it is often civil society organisations rather than governments that take
Appendix 2: Street Children and the CRC
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on the burden of caring for these children. Increased cooperation and
collaboration is required amongst CSOs in order to exchange lessons learned and
good practices. It is also needed between CSOs and the state to ensure the
sustainability of programmes and to address underlying socio-economic and
discriminatory policies that perpetuate the street children phenomenon.
ARTICLE 37 – FULL TEXT
States Parties shall ensure that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment
or punishment. Neither capital punishment nor life imprisonment without possibility of
release shall be imposed for offences committed by persons below eighteen years of age;
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest,
detention or imprisonment of a child shall be in conformity with the law and shall be
used only as a measure of last resort and for the shortest appropriate period of time;
(c) 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 into account the
needs of persons 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 interest 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;
(d) 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 legality of
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.
ARTICLE 40 – FULL TEXT
1 States Parties recognize the right of every child alleged as, accused of, or recognized
as having infringed the penal law to be treated 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.
2 To this end and having regard to the relevant provisions of international
instruments, States Parties shall, in particular, ensure that:
(a) No child shall be alleged as, be accused of, or recognized as having infringed the
penal law by reason of acts or omissions that were not prohibited by national or
international law at the time they were committed;
(b) Every child alleged as or accused of having infringed the penal law has at least the
following guarantees:
(i) To be presumed innocent until proven guilty according to law;
(ii) To be informed promptly and directly of the charges against him or her, and, if
appropriate, through his or her parents or legal guardians and to have legal or other
appropriate assistance in the preparation and presentation of his or her defence;
(iii) To have the matter determined without delay by a competent, independent and
impartial authority or judicial body in a fair hearing according to law, in the presence
of legal or other appropriate assistance and, unless it is considered not to be in the best
interest of the child, in particular, taking into account his or her age or situation, his
or her parents or legal guardians;
(iv) Not to be compelled to give testimony or to confess guilt; to examine or have
examined adverse witnesses and to obtain the participation and examination of
witnesses on his or her behalf under conditions of equality;
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(v) If considered to have infringed the penal law, to have this decision and any
measures imposed in consequence thereof reviewed by a higher competent,
independent and impartial authority or judicial body according to law;
(vi) To have the free assistance of an interpreter if the child cannot understand or
speak the language used;
(vii) To have his or her privacy fully respected at all stages of the proceedings.
3 States Parties shall seek to promote the establishment of laws, procedures,
authorities and institutions specifically applicable to children alleged as, accused of, or
recognized as having infringed the penal law, and, in particular:
(a) The establishment of a minimum age below which children shall be presumed not
to have the capacity to infringe the penal law;
(b) Whenever appropriate and desirable, measures for dealing with such children
without resorting to judicial proceedings, providing that human rights and legal
safeguards are fully respected.
4 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 well-being and proportionate both to their
circumstances and the offence.
APPENDIX 3
JUVENILE JUSTICE CHECKLIST
Extracted from: ‘Implementation Handbook for the Convention on the
Rights of the Child’ (UNICEF, 1998) Specific issues in implementing
Article 402
1 Does legislation, policy and practice in the State uphold the right of every child in
the jurisdiction alleged as, accused of, or recognised as having infringed the penal law
to be treated in a manner which,
•
is consistent with the promotion of the child's sense of dignity and worth?
•
reinforces the child's respect for fundamental human rights and for the
•
fundamental freedom of others?
•
takes into account the child's age?
•
takes into account the desirability of promoting the child's reintegration?
•
takes into account the desirability of the child assuming a constructive role in
society?
2 In planning its system of juvenile justice, has the State had regard to the relevant
United Nations rules and guidelines and to other relevant international instruments?
3 Does legislation ensure that children cannot come into the criminal justice system
because of acts or omissions that were not prohibited by national or international law
at the time they were committed?
4 Does legislation, policy and practice in the State guarantee to any child alleged as
or accused of living infringed the penal law the right
•
to be presumed innocent until proved guilty according to the law?
to be informed of the charges against him or her
•
promptly?
•
directly?
•
if appropriate through parents and guardians?
Appendix 3: Juvenile Justice Checklist
2 Cited in The Partnership for Global Good
Practice(PGGP), International Standards for the
Administration of Juvenile Justice And
Examples of Good Practice, February 2002,
pp.30-32. Please be aware that the
‘Implementation handbook for the Convention
on the Rights of the Child’ (UNICEF, 1998) has
since been updated.
167
9
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in the preparation and presentation of his or her defence, to have appropriate
•
legal assistance?
•
other assistance?
to have the matter determined?
•
without delay?
•
by a competent and impartial authority or judicial body?
•
in a fair hearing (according to international instruments, including the "Beijing
Rules")?
•
in the presence of legal and other appropriate assistance?
•
in the presence-unless judged not to be in the child's best interest, and taking
account of the child's age or situation- of parents or legal guardians?
•
in the child's own presence?
not to be compelled
•
to give testimony?
•
to confess guilt?
to be able
•
to examine or have examined adverse witnesses?
•
to obtain the participation and examination of witnesses on his or her behalf
under conditions of equality?
5 If considered to have infringed the criminal law, to have a review by a higher,
competent, independent and impartial authority or judicial body according to law, of
•
the decision?
•
any measures imposed in consequence thereof?
•
to have the free assistance of an interpreter if the child cannot understand or
speak the language used?
•
to have his or her privacy fully respected at all stages of the proceedings?
6 Are hearings involving children open to
•
the public?
•
representatives of the press?
7 Are there appropriate limits on press reporting of such hearings and their results?
8 Does legislation ensure that there are no circumstances in which the identity of a
child alleged as, accused of or recognised as having infringed the penal law can be
disclosed?
9 Is there a system of juvenile justice in the State distinctive from that relating to
adult?
10 Are all children up to 18 years of age alleged as, accused of or recognised as having
infringed the penal law in the jurisdiction, without exception, dealt with through the
system of juvenile justice?
11 Does the juvenile justice system include, specifically for such children,
Distinct
•
laws?
•
procedures?
•
authorities?
•
institutions?
•
disposals?
12 Is a minimum age defined in law below which children are presumed not to have
the capacity to infringe the criminal law?
13 If such an age defined in law below which children are presumed not to have the
capacity to infringe the criminal law?
14 Does legislation, policy and practice provide measures for dealing with children
168
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alleged as, accused of or recognised as having infringed the penal law without
resorting to judicial proceedings?
If so, do safeguards exist for the child who believes him/herself to be innocent?
15 Are a variety of dispositions available, such as
•
care orders?
•
guidance and supervision orders?
•
diversion to mental health treatment?
•
victim reparation/restitution?
•
counselling?
•
probation?
•
foster care?
•
education?
•
vocational training courses?
•
any other alternatives to institutional care?
16 Does legislation, policy and practice ensure that children are dealt with
•
in a manner appropriate to their well-being?
In proportion to
•
their circumstances?
•
the offence?
APPENDIX 4
PENAL REFORM INTERNATIONAL: TEN POINT PLAN FOR JUVENILE JUSTICE
A contribution to the Committee on the Rights of the Child Day of General
Discussion on "State Violence Against Children", Geneva 22 September 2000.
The following Plan focuses on ways of reducing violence within juvenile justice
systems around the world. The plan builds on the relevant international instruments:
the UN Convention on the Rights of the Child, the Standard Minimum Rules for the
Administration of Juvenile Justice and the UN Rules for the Protection of Juveniles
Deprived of their Liberty.
Penal Reform International (PRI) believes that a proper administration of juvenile
justice cannot be achieved without a strong education and social welfare system.
Helping young people in conflict with the law to become law abiding adults is much
more the job of parents, teachers, social workers and psychologists than it is police,
courts and prisons.
PRI believes that juvenile offending should be dealt with as far as possible outside the
formal criminal justice and penal systems. It is important to ensure that alternative
systems- particularly those involving institutional care- take proper steps to protect
children from violence and abuse.
Arrest and Interrogation
1 Arrest of children (defined as those under the age of 18 years) should be a measure
of last resort and detention in police custody should be for the shortest time and in no
case more than 48 hours. Use of police bail or bond with or without surety should be
encouraged Those arrested by the police should be separated from adults and held in
child friendly rooms rather than conventional cells. Questioning should be undertaken
by selected and trained officers in the presence of parents, guardians or other
appropriate adults. Children should be informed of their rights.
Age of Criminal Responsibility
2 Countries should set as high a minimum age of criminal capacity as possible and
children below this age who are accused of crimes should not be taken through the
criminal justice system. Measures should be found for dealing with such children that
provide them with appropriate services whilst protecting their rights.
Appendix 4: PRI 10-Point Plan for Juvenile Justice
9
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Diversion
3 There is a need for diversionary community alternatives to prosecution when
children admit their offences. Warnings, cautions and admonitions can be
accompanied by measures to assist the child at home, with education and with
problems or difficulties. Conferences which involve the victim and members of the
community may be particularly useful provided that there are safeguards to protect
the well being of the child. Prosecuting authorities should develop guidelines to assist
diversion in the lower courts.
Pre-Trial Detention
4 Children should, where possible, be released into the care of their families to await
trial in their own homes. Conditional release should be accompanied by measures to
support and supervise the child and family. A maximum time limit should be set for
keeping a child on bail according to age and offence. Pre trial Detention should not be
used for children other than in exceptional circumstances and under 14's should never
be detained in prison establishments. Where it is used it should be for the shortest
time, with a cut off period for which a person may be held awaiting trial, after which
the child should be released on bail. Bail and other forms of conditional release should
be accompanied by measures to support and supervise the young person and their
family. Separation from adult detainees and strict monitoring of the conditions of
children detained pre trial are imperative.
Alternative Sentences
5 A wide range of alternative sentences are needed particularly those which
emphasise the values of restorative justice and seek to meet the needs of young people
which are leading them into crime. Intensive programmes should be developed for
more persistent and serious young offenders. Fostering and residential placements in
educational and treatment facilities should be available where necessary.
Youth Courts
6 Special child courts/tribunals with less formal proceedings should be established for
dealing with under 18's. Such courts should be held in camera and the presence of the
parent/guardian is important. Judges should receive special training and concern
themselves with the application of sanctions and measures as well as just sentencing.
Sentencing should be based on a careful assessment of the needs of the young person
as well as the circumstances of the offence. Legal representation should be encouraged
and where a child is facing the possibility of a custodial sentence the state should
automatically provide immediate legal support and aid.
Custodial Sentences
7 Custodial sentences should be used as a last resort and for the shortest time, and
used only in exceptional cases. Small open facilities with minimal security measures
should be developed for children serving such sentences. Education and rehabilitation
should be the main priorities. Decisions about the placement of young offenders in
establishments should balance the need to maintain family contacts with the need for
specialist regimes. A minimum age for placement in prison establishments should be
set and should be no lower than 14.
Detention Facilities
8 Separate facilities should be used for children who are detained namely no mixing
with adults. In large prison establishments, adult prisoners should not be used as
guards in the unit where children are held. Regimes should be constructive with
education, sporting and cultural activities provided during the day and in the
evenings. Adequate numbers of staff should be trained and vetted. Non-governmental
organisations should be encouraged to play a full part in the life of the institution.
Facilities should have an anti-bullying policy and systems for mediating disputes
between detainees. Appropriate methods of discipline, control and restraint should be
used based on the minimum necessary use of force. Records should be kept and
inspected of such incidents. Needs and risk assessments should be undertaken on
admission with more serious offenders separated from less serious ones.
Inspection
9 Systems of independent scrutiny and inspection should be established for institutions
for children. These should comprise government inspectors and representatives of the
local community. Complaint systems with an independent element should be in place.
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Independent visitors should be encouraged to befriend young people and advocate on
their behalf. Non-governmental organisations working on human rights issues should
play a role in monitoring institutions for children or any other institutions where children
are held. Matters for scrutiny should include the rights to privacy for children, to make
complaints, to be held in open institutions unless security is necessary for the safety of
the child or the public, the right to contact with family and the right to access educational,
leisure, health and rehabilitative programmes.
Family Links
10 Every effort should be made to encourage contact between detained children and
their families and communities. Visits should take place in private settings and
children should be permitted to make visits to their family homes. Plans should be
developed to assist the reintegration of the child into their family and community
when they are released from detention. Reintegration programmes should be
developed to help children move back into, and become contributing members of their
communities.
This document is extracted from PRI's information pack on Juvenile Justice.
www.penalreform.org
APPENDIX 5
EXAMPLE OF OVERALL JUVENILE JUSTICE REFORM: UGANDA 3
The Reforms
•
The minimum age of criminal responsibility has been raised from 7 to 12
years.
•
Specialized children’s courts (family and children’s courts) have been
established throughout the country (for all criminal cases against a child except
capital offences and where a child is jointly tried with an adult). Informal setting;
closed to the public; parents/guardians present wherever possible.
•
The Children’s Statute gives village courts jurisdiction over minor criminal
cases such as affray, theft, criminal trespass, acting as a diversion option and
giving children improved access to justice in some cases.
•
Expediting trials. Limitations on the length of any trial process: children’s cases
will be dismissed if the trial is not completed within 3 months after the plea is
taken (12 months in the case of serious crime) or thereafter be dismissed.
Maximum 6 months on remand in the case of serious offences and thereafter the
child should be released on bail.
•
Sentencing. Policies emphasise community options. Where unavoidable,
detention to be used only for a maximum of 3 months for a child under 16, and
a maximum of 12 months for a child above 16, and a maximum of 3 years in case
of a capital offence. The formal courts are encouraged to use options such as
probation, caution, fine, absolute discharge and other alternatives which allow
the child to remain with his/her family. At local levels, the village courts (which
are not allowed to remand a child in custody or to make a detention order) can
give orders such as compensation, restitution, apology, caution and such other
orders that involve the community.
•
Relaxed bail conditions. The requirement for cash as pre-requisite for bail has
been relaxed in favour of the child or his/her parents or guardians promising that
the child will return to court when required.
•
Diversion and community options: Reflected in the provisions of the Statute and
there are provisions for diversion at village level, by the police, family and
children’s courts, magistrates court and the high court.
•
The offence of ‘being idle and disorderly’ has been decriminalised. Prior to the
enactment and coming into force of the Children Statute, children charged with
being idle and disorderly counted for over 50% of the children in the remand
homes, especially the remand home in the capital city. Currently, children are
not charged with this offence and the number of children on remand has
drastically reduced.
Appendix 5: Example of Overall Juvenile Justice Reform: Uganda
9
3 Kakama, P.T., Juvenile Justice in Uganda,
Save the Children, UK, paper presented at a
seminar on Juvenile Justice held in Lilongwe,
Malawi, 23 - 25 November 1999.
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Responses to the reforms
•
General support from top government officials who, despite the structural
and financial constraints related to implementation of eth Children’s Statute,
would like to give the reforms a chance.
•
Family and Children Courts have been gazetted and these are spread
throughout the country. The rules for the conduct of these courts have been
enacted and made available to all the courts and probation and welfare officers.
•
The establishment of Court Users Groups in some districts has improved coordination and contributed to the reduction of children on remand. A pilot
initiative (‘Chain-Linked’ project) aimed at improving co-ordination,
communication and co-operation among the principal actors in the criminal
justice system is underway. This initiative is already having an impact in terms
of speedy trial and reducing congestion in places of custody – mainly the police
cells and prisons. National and district training initiatives for all judicial officers,
police and probation/welfare officers has started to ensure understanding of the
laws. Positive attitude to change and practice is already being observed in many
respects.
•
Attempts are being made to recruit probation/welfare officers in some
districts where they did not exist, as they have a key role in the implementation
of the reforms.
Places of remand are being established in some districts to reduce the long
transfers and movement of children from one area to another in search of
remand homes.
•
A legal aid clinic has opened at the Law Development Centre in the
capital, Kampala. The clinic provides legal aid services to indigent adults
charged with minor offences and children. A total of 188 cases had so far been
handled at the time of the report (1997) and there is potential for more and more
children to access legal aid.
•
Training guides on the Statute have been prepared and the Children’s
Statute has been simplified into English and translated into six major
local languages. The simplification and translation of the statute means that the
law can be read and understood by a large number of the population. This is
imperative to enhance good practice and responses to children in conflict with
the law as well as other categories of children who are in need of care and
protection.
Challenges to implementation:
•
Understanding the rights of the child. Further work required as this is
probably the single most important factor that can have lasting impact, bridging
the gap between knowledge of the law and actual practice.
•
Changing attitudes towards children in conflict with the law and
punishment. Law enforcement officers, judicial officers and the community
need to appreciate that children in conflict with the law are better off if dealt with
in their families and communities rather than in meting out severe punishments
and incarcerating them.
•
Inadequate resources and infrastructure. While the absence of resources and
infrastructure affect the implementation of the reforms, there is a need for all the
actors to look out for and use creative and alternative approaches provided in the
Statute rather than the issue of resources being fronted to detract attention from
the real opportunities offered by the statute for the better delivery of juvenile
justice. This is crucial if the momentum so far gained is not to be lost.
The Way forward
With an appropriate legal framework in place, the next steps are the consolidation of
the opportunities the new legislation offers. Particular attention must focus on
enabling understanding within the community and across sectors that there are other
- and probably better - solutions to the problems of child offending. The alternatives to
incarceration and deprivation of liberty need to be demonstrated.
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Postscript
In spite of the passing of the Children Act and the reform efforts of 1999, recent
reports from the field indicate ongoing problems. For example: frustration at the
lack of implementation of the Children Act which is being hampered by
planning and resource constraints (e.g. children are still being held in adult
cells; lack of family and children's courts; lack of social workers at police
stations; lack of adequate hearing of children in cases of reported abuse). See
also Chapter 6 of this book for the case study on the routine round-ups of street
children in Uganda. There are also reports of specific incidents of
indiscriminate killing of street children and young people - some of whom were
caught stealing items such as mobile phones, car parts or iron roofing sheets.
See also the postscript at the end of Appendix 6 in relation to ongoing problems
of human rights violations by law enforcement officers.4
APPENDIX 6
THE ROLE OF THE POLICE: EXAMPLE OF GOOD PRACTICE FROM UGANDA 4
The following is taken from the Police Guidelines drawn up by a special task group in
Uganda (with Save the Children UK support), to help with the implementation of the
Uganda Children’s Statute 1996 (CS). The CS provides a legal framework for care and
protection of all the children in Uganda. S.90 (2) of the CS states that: “The police shall
be empowered to dispose of cases at their discretion without recourse to formal court
hearings in accordance with the criteria laid down by the Inspector General of Police”.
POWERS OF THE POLICE
A police officer shall have the power to arrest a child who is in conflict with the law.
The police are empowered to caution and release a child in conflict with the law
charged with specific offences as shall be highlighted in these Guidelines without
recourse to the Court.
AGE OF CRIMINAL RESPONSIBILITY
The minimum age of CR set at 12 years; therefore no child below 12 shall be arrested
by the police. When a child under 12 is suspected to be in conflict with the law, the
police shall without any delay refer such a child to the Secretary Children Affairs or
Probation and Social Welfare Officer.
PROCEDURE TO BE FOLLOWED BY POLICE WHEN HANDLING CASES INVOLVING CHILDREN IN
CONFLICT WITH THE LAW
NOTE: where possible all cases involving children in conflict with the law shall be
handled by the Child and Family Protection Unit (within the Police Force).
•
•
•
•
•
•
•
•
Arrests shall not be carried out before gathering enough information to sustain
the charge being brought against the child in conflict with the law.
Where police arrests a child, his/her parents/guardians and the secretary
children affairs (SCA) of the local council where the child lives shall be informed.
On arresting a child the police shall write down the circumstances of arrest, the
crime committed and other related details.
A child in the custody of the police shall NOT be mixed with adult suspects.
Female children shall be separated from male ones while in police custody.
Where a female child is in conflict with the law, such a child shall be handled by
a female police officer.
A police officer on interviewing a child in conflict with the law shall ensure that
the parent or guardian or SCA is present at the time of interviewing the child in
conflict with the law.
Where the police officer and in liaison with the SCA of the area fail to get the
parents or guardians of the child in conflict with the law, the SCA shall be
Appendix 6: The Role of the Police – Example of Good Practice: Uganda
4 Based on information from Human Rights
Watch, State of Pain: Torture in Uganda, March
2004 and information supplied by street
children to NGOs who wish to remain
anonymous.
5 ‘Implementation of the Children’s Statute
1996 – Police Guidelines’, published with
support of Save the Children UK, 2000, cited in
The Partnership for Global Good Practice
(PGGP), International Standards for the
Administration of Juvenile Justice And
Examples of Good Practice, February 2002,
pp.17-21.
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required to be present at the time the child in conflict with the law is being
interviewed by the police.
•
Where the offence is triable in the Family and Children Court (FCC) or the High
Court (HC), the Probation and Social Welfare Officer shall be present at the time
of the interview.
•
Where the circumstances of the offence are:
a not serious;
b child shows remorse;
c child is a first offender;
Then the police officer shall CAUTION the child and have him/her released.
Some of the cases where the police shall be able to caution and release the child in
conflict with the law are:
1
Affray
2
Malicious damage to property
3
Criminal trespass
4
Theft
5
Common assault
6
Actual bodily harm
Where the child in conflict with the law is:
a a habitual offender
b shows no remorse
c the offence is of a serious nature
d the circumstances of the offence are serious
The police shall forward the child in conflict with the law to court with the jurisdiction
to try such a child.
No child in conflict with the law shall be charged with offences such as 1 to 6 above;
a child in conflict with the law alleged to have committed any of the aforementioned
offences shall be referred to the Local Council as the court of first instance.
JURISDICTION OF THE LC COURT
The Jurisdiction of the LC Courts in Uganda covers inter alias points 1 to 6 above.
A village LCC may make an order for the offences specified above as follows:
•
Reconciliation
•
Compensation
•
Restitution
•
Apology
•
Caution
In addition the LCC may make a guidance order under which a child shall be required
to submit himself / herself to the guidance, supervision, advice and assistance of a
person designated by the court.
A guidance order shall be for a maximum period of six months. Proceedings in respect
of a child appearing before a LCC shall be in accordance with the procedure laid down
by the CS having due regard to the rights of the child.
POLICE BOND
Where the police is of the opinion that a child in conflict with the law:
1
shall not be dangerous to the community;
2
safety of the child is not at stake;
Then the police shall release the child on POLICE BOND.
A child in conflict with the law shall where the circumstances warrant, be afforded
a Police Bond on his/her own recognizance (meaning a formal promise made to a
police officer that one will appear at a place on a certain date and time as required).
INVESTIGATION
A key factor in the implementation of the CS is that in all matters relating to a child,
whether before a court of law or any other person of authority, regard shall be given
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to the general principle that any delay in the necessary processes is likely to be
detrimental to the welfare of the child. Therefore the police shall ensure that all
investigations are handled expeditiously without undue delay. A police officer
investigating a case where a child has appeared before a
Family and Children Court and a plea of not guilty has been entered shall ensure that
investigations are completed in a period of less than one month. Where owing to the
seriousness of the case, the matter is before the High Court, then the maximum period
of investigation to be undertaken by the police officer in charge shall not exceed three
months. Where exhibits have been recovered, proper care and handling of such
exhibits is of paramount importance.
DETENTION IN POLICE CUSTODY
Custodial options such as detention of children in conflict with the law by the police
shall be exercised as an option of last resort. Possibilities like Police Bond shall first be
explored.
Where the circumstances warrant a detention of a child in conflict with the law, it shall
be the duty of the police to provide an appropriate place for such detention.
Such a place of detention shall be fit to provide good care for the child in conflict with
the law. Detention of children in conflict with the law before presentation to court
shall not exceed 24 hours.
The place of detention shall be of such a nature that the child in conflict with the law
is not brought into contact with adult suspects in police custody.
While in detention the welfare of the child shall be of paramount consideration.
RECORDS
Proper and accurate record keeping is crucial to ensure that cases involving children
in conflict with the law are followed through the criminal justice system.
Access to such records shall be limited to persons directly concerned with the
disposition of the cases at hand or other duly authorised persons.
GENERAL INFORMATION ON CHILD RELATED CASES
The police shall not release any information that is likely to affect the welfare of the
child in conflict with the law or disclose the identity of the child except where it is
absolutely necessary for purpose of carrying out the relevant investigations.
Postscript
In spite of the passing of the Children Act and the reform efforts of 1999, recent
reports from the field indicate ongoing problems. For example street children
are complaining of continued beatings by law enforcement officers: of 8000
treatments in 2002 offered by the medical services at The Tigers Club Project,
25% were wounds inflicted on the street in fights or by security forces, guards,
police, Local Defence Units or older street children.6 Likewise, a Human Rights
Watch report (March 2004) indicates a recent rise in reports of beatings and
deaths among older street children and young people. Street children and young
people in particular cite the tactics of the Violent Crime Crack Unit which is in
theory supposed to be addressing anti-terrorism, but which in practice seems to
target anyone deemed ‘socially undesirable.’ Furthermore, street children are
allegedly still being held in adult cells and are regularly being rounded up by
the police (highlighted as a case study in Chapter 6 of this book). See also the
postscript at the end of Appendix 5 in relation to problems regarding
implementation of the Children Act in Uganda in general.7
6 Information supplied to Consortium for Street
Children by Tigers Club Project, May 2004.
7 Based on information from Human Rights
Watch, State of Pain: Torture in Uganda, March
2004 and information supplied by street
children to NGOs who wish to remain
anonymous
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APPENDIX 7
THE EUROPEAN NETWORK OF OMBUDSPERSONS FOR CHILDREN (ENOC)
- ‘JUVENILE JUSTICE: EUROPE’S CHILDREN’S CHAMPIONS CHALLENGE
GOVERNMENTS TO RESPECT YOUNG OFFENDERS’ RIGHTS’
As children’s ombudspersons in 21 European states, we are very concerned at the tone
of political and media debate and the direction of public policy and legal changes
concerning juvenile offenders in many of our countries.
Children in conflict with the law are still children first and do not lose their human
rights, including rights to special treatment and protection, to education and to health.
We believe that current trends to reduce the age of criminal responsibility and to lock
up more children at younger ages must be reversed. The treatment of young people
placed in penal institutions in many of our countries is a scandal – breaching their
fundamental human rights.
Across Europe, ages of criminal responsibility vary from as young as 7, 8 and 10 up to
16 in some states and 18 – but with exceptions – in a few; the definition also varies.
We believe that the concepts of “responsibility” and of “criminalisation” need to be
separated. The Convention on the Rights of the Child (CRC) proposes a separate,
distinct system of juvenile justice; it requires that this must be focused on respect for
all the rights of the child and on the aims of rehabilitation and re-integration. This
focus and these aims are not compatible with “criminalising” child offenders.
We do believe that children should be held “responsible” for their actions in line with
the concept of evolving capacities and our strong advocacy for respect for children’s
views in all aspects of their lives. It is essential to establish responsibility for crimes.
Where responsibility is disputed, there has to be a formal process to determine
responsibility in a manner which respects the rights of the alleged offender. But this
process does not have to lead to criminalising children.
In promoting policies which respect the human rights of young offenders, we
emphasise that we are not in any way neglecting the rights and concerns of victims of
juvenile crime, who must receive appropriate reparation and support from the state.
But their interests are not served by pursuing policies that fail to rehabilitate offenders
and tend instead to make them more prone to offend and possibly more violent. We
must also highlight the fact that children are far more often victims of crime, including
violent crime, than perpetrators.
We believe that all states, far from considering lowering current ages of criminal
responsibility, should aim progressively to raise them to 18, developing innovative
systems for responding to all juvenile offenders below that age which genuinely focus
on their education, reintegration and rehabilitation. As proposed in the CRC, states
need to develop a range of alternative measures to divert children from the juvenile
justice system. They also need to ensure training and re-training, emphasising the
human rights of children, for all those involved with children in conflict with the law.
More broadly, states need to develop preventive strategies, as highlighted in the UN
Guidelines for the Prevention of Juvenile Delinquency.
While it may be necessary to employ compulsory measures in responding to juvenile
offenders, it is neither in the interests of children nor of the broader society to pursue
measures which are purely punitive in intent, including the use of custody. Research tells
us that rates of re-offending and in particular violent offending are increased by depriving
children of their liberty. The only legitimate reason for detaining children, before or after
trial, must be that they pose a serious and immediate risk to others. In these rare cases,
the use of custody should be constantly reviewed and other alternatives of close
supervision considered. Conditions in custody must respect all human rights as set out
in the CRC and in the United Nations rules and guidelines on juvenile justice; all children
must in particular have equal access to appropriate full-time education. In accordance
with the CRC, in all cases children in custody should be separated from adults.
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We note that international human rights monitoring bodies and the human rights
mechanisms of the Council of Europe share our concerns: the European Committee
of Social Rights, which monitors compliance of member states with the Social
Charters, has expressed concern at the use of custody, including for remanded
children, and also at proposals to reduce the age of criminal responsibility. The
European Court of Human Rights has found that methods of trial and sentencing and
treatment of juveniles in some states breach the European Human Rights Convention.
The European Committee for the Prevention of Torture, following visits to countries
and inspections of institutions, has frequently expressed concern about the treatment
of juveniles deprived of their liberty and also underlined that deprivation of liberty
must only be used as a last resort. The Committee on the Rights of the Child,
monitoring states’ compliance with the CRC, has echoed these and other concerns in
its comments on reports from European states.
ENOC urges individual states urgently to review their juvenile justice systems against the
requirements of the CRC and European human rights instruments. It urges the Council
of Europe, including the Committee of Ministers and the Parliamentary Assembly, to give
priority to highlighting, developing and enforcing the human rights standards applicable
to children who are in conflict with the law in the 45 member states.
In addition, ENOC urges the Committee on the Rights of the Child rigorously to
examine States’ progress towards respecting the rights of children in conflict with the
law and to encourage a single-minded focus on rehabilitation and re-integration, not
criminalisation, for all children up to 18.
Stockholm, 17 October 2003
APPENDIX 8
STREET CHILDREN AND JUVENILE JUSTICE: CHILDREN’S PARTICIPATION
– ACTIVITY EXAMPLES (PHILIPPINES)
Background: The CSC Street Children and Juvenile Justice Project was implemented in
the Philippines by a group of NGOs across the country, coordinated by the Psychosocial
Trauma and Human Rights Program of the University of the Philippines (UP CIDS PST).8
The emphasis of the project was on the meaningful participation of children themselves.
The partners in the Philippines therefore developed 2 modules of activities for use with
children. The first is for use with children in the community / already taking part in NGO
programmes. The second is for use with children who are actually in detention and
rehabilitation centres. Children’s workshops were conducted in different regions of the
country, facilitated by young people themselves with adult support. The children then
voted for a few of their peers to represent their regional findings at a national
consolidation children’s workshop. CSC is very grateful to the partners in the Philippines
who have agreed to share these materials in the hope that they may be adapted to suit
the situation in other countries in order to further promote meaningful children’s
participation as part of this project. A small sample of activities is included here. Full
copies of the modules are available electronically from [email protected].
EXAMPLES OF 3 ACTIVITIES TAKEN FROM THE ‘COMMUNITY
AND NGO PROGRAMMES’ MODULE
STAGE: PRE-DETENTION
ACTIVITY: SENTENCE COMPLETION
Objectives:
1
To evoke the children’s experiences on their families, communities and friends
2
To share about experiences before they were detained by the authorities
Duration: 15 minutes
Instructions:
1
Instruct the participants to pair off – preferably with the person next to them.
2
They will complete the sentences that the facilitator will announce. Each pair
Appendix 8: Children’s Participation – Activities Examples
9
8 The other partners are ChildHope Asia
Philippines, PREDA, Tambayan Centre and
Freelava Inc.
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will take turns completing the sentence and will be given about 5 minutes to
share.
The sentences will be:
a “My family is…”
b “I am happy when…”
c “I was sad when…”
d “My friends are...”
e “I am close to…”
f. “I do not like …[person]”
STAGE: DETENTION
ACTIVITY: “INSIDE THE DETENTION CENTRES”
Objective: To present through dramatization or tableaux actual experiences in
detention
Instructions:
1
Instruct the children to pick a partner. After they have paired off, tell them that
each pair will make a tableau that will show an activity that they did or a situation
they experienced while they were in jail.
2
The facilitator will tell half of the pairs to ‘unfreeze’ and look at the other pair
who will maintain their poses. Those who ‘unfroze’ will observe the others. The
facilitator will tell those who are still in the tableau that he/she will point to a pair
and that pair will add a short dialogue and action to their tableau. After they have
acted out, they will return to their tableau. After all the pairs have done so they
will ‘unfreeze’ and the other group will resume their tableau with the previous
group looking on.
3
The facilitator will then tell the pairs to merge into 2 main groups. The 2 groups
will now each create a bigger tableau of their activities and situation while they
were in jail. (Give them 5 minutes to prepare).
4
As the first group presents their tableau, the facilitator will instruct the children
that when he/she taps the shoulder of a character in the tableau, he/she will add
dialogue and action.
5
The next group will present and the facilitator will give the same instructions.
The details of the experiences that were seen in snatches in the tableaux will be
discussed. The following details must be discussed:
a Experiences while in jail:
i Where did they take you after your arrest?
ii What does the detention place look like?
iii What did they feed you?
iv Did they make you do anything? If so, what?
v Who were the people inside the detention cell?
b The factors that were detrimental to the child
i What things did you not like inside the detention cell?
ii Was there anything that made your situation worse?
c The good practices
i What practices did you like inside the detention cell?
ii Was there anyone who helped you there? What help did they give you? Did
they treat you kindly? What kind of treatment did you receive?
d The child’s thoughts and feelings while in detention
i What did you think or feel while inside the detention cell?
e How long was he/she in jail and what were the circumstances that led
to his/her release?
i How long did you stay inside the detention centre before you got out?
ii How were you able to get out? Did someone help you? Who? What did s/he
do?
Synthesize their sharing.
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STAGE: RECOMMENDATIONS – ‘FROM OUR POINT OF VIEW’
ACTIVITY: “CLOTHESLINE”
Objectives: To recommend measures and concrete actions at the local and national
levels guided by the 5 pillars of justice.
Duration: 1 hour
Materials: yarn / string; paper; sticky tape or stapler
Instructions:
1
Write down the following on five postcards / index cards:
a law enforcement
b prosecution
c courts
d correction
e community
2
For each of the 5 postcards, attach one end to a piece of string and the other end
to the wall to create 5 ‘labelled’ clotheslines (which can either hang down loosely
from the wall, or can be stretched across the room horizontally).
3
Give 5 pieces of paper to each of the participants.
4
Ask the participants to think of one recommendation (how to better protect or
uphold the rights of children – be clear whether they are talking about children
actually ‘in conflict with the law’ or ‘children in need of care and protection’ who
have been caught up in the system) per pillar of justice. Remind them to think
of concrete, ‘doable’ actions or programmes.
5
Ask the participants to ‘hang’ or staple their recommendations on the
yarn/clothesline.
6
Gallery walk: allow 3 minutes for all the participants to read the answers.
7
Facilitator assigns a group to a ‘pillar’ and asks the group to carefully read the
recommendations and collate/synthesize the responses.
8
Reporting: each group presents their collation/synthesis.
9
Facilitator synthesizes the whole activity.
Option to compile information from the workshop into a matrix format as below.
(Suggestion: a group works on an initial draft based on discussion/output of previous
sessions).
LAW ENFORCEMENT PROSECUTION
COURTS
CORRECTION
COMMUNITY
APPREHENSION
a rights violated
b good practices
c recommendations
a rights violated
b good practices
c recommendations
Detention
a rights violated
b good practices
c recommendations
Etc.
Adjudication and
Post-adjudication
a rights violated
b good practices
c recommendations
Rehabilitation
EXAMPLE OF AN ACTIVITY TAKEN FROM THE ‘DETENTION
AND REHABILITATION CENTRES’ MODULE
STAGE: COMPARISON OF EXPERIENCES BEFORE AND DURING DETENTION
ACTIVITY: (PART 1) PREPARATION FOR COMIC STRIP ACTIVITY
Objectives:
1
To identify the different features of a comic strip/book
2
To prepare the participants to make their own comic strip/book based on
their life stories
9
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Materials: a local language comic strip/book
Instructions:
1
Show to the participants a sample of a comic strip or book in a local language.
Pass it around and ask a few of the participants to read one box or ‘frame’ from
the comics.
2
After reading, the facilitator will help the children identify the different features
of a comic strip/book.
3
Describe the comic strip/book.
a Who are the main characters of the comics? What can you say about the
characters? Are they based on real life?
b What are the comics all about? What is the topic or main issue?
c How is the storyline presented? (dramatic or funny)
ACTIVITY: (PART 2) ‘COMICS: FROM OUR HOME TO OUR HOUSE WITH NO FREEDOM’
Objectives:
1
To evoke the experiences/ situation from the time they were still with their
families to their current situation in detention or rehabilitation
2
To make a comic strip/book about their experiences/ situation before they were
put in detention/ rehabilitation until the present
Materials: drawing materials (papers, pencils, crayons, etc.)
Instructions:
1
Instruct the children to draw their experiences and/or situation from the time
they were still with their families up to the time they violated the law and were
put in detention or rehabilitation.
2
Give them drawing materials. Instruct them to draw as if they are drawing for a
comic magazine. They may use stick figures of people as long as the
conversations are clear.
3
4
Be sure that their drawings will accordingly show the following:
- situation at home before they were arrested (home)
- a picture of their community and friends (community and friends)
- event/s that led to their arrest (arrest)
- condition inside the detention or rehabilitation center (inside the detention cell)
- wishes and efforts to be released from detention or rehabilitation (‘I wish that…’)
Allow 30 minutes for them to draw. (However, adjust your time accordingly if
they need more time to finish their drawing.)
APPENDIX 9
RACISM IN CRIMINAL JUSTICE SYSTEMS 9
HOW IS RACISM, RACIAL DISCRIMINATION, XENOPHOBIA AND RELATED INTOLERANCE
MANIFESTED WITHIN CRIMINAL JUSTICE SYSTEMS?
Racism or racial discrimination may occur in multiple forms and at all stages
of the criminal justice and prison systems, and in many instances lead to
serious violations of fundamental human rights.
Within law enforcement agencies, it may occur during the period of investigation,
at the moment of arrest, as part of the decision to charge a person with a criminal
offence, and during any period spent in police custody.
Discrimination may also occur as a result of inherent characteristics of vulnerable
persons, including ignorance of local laws and culture; ignorance of the local language
and lack of access to translators / interpreters at critical stages of the criminal process;
lack of access to diplomatic consulates; fragile or illegal residential status; or inability
to access, or lack of financial resources for, an adequate defence.
9 Penal Reform International, 2001 Anti-Racism
Programme: Final Report, July 2002, pp.12-15
180
Court or administrative procedures and decisions may also in practice result in
racially discriminatory outcomes, such as overtly or covertly prejudicial judicial or
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jury decisions; disproportionately harsh sentencing (including the death penalty) or
the failure to apply appropriate non-custodial sentencing; and a lack of understanding
of cultural differences, or understanding of the very stresses related to being a
member of a racially vulnerable group.
Vulnerable groups also suffer racial discrimination whilst serving sentences
passed by the court. They may be assigned onerous prison sentences, even when
non-custodial options exist; during prison detention they may be physically,
linguistically, and culturally isolated in an active or passive fashion; they may be the
victims of hatred, harassment, dehumanisation or violence by prison inmates and
staff; they may suffer from inadequate human resources policies, for example the
absence of, or low-ranking, staff of minority status; they may suffer particular
difficulties obtaining discretionary release, such as remission or parole.
Finally, vulnerable groups may suffer disproportionate hardship after
conviction, and/or release from imprisonment, such as reintegration into the
society, due to increased stigmatisations and lack of access to cultural and economic
support resources, accommodation, education, health and employment.
HOW CAN RACISM AND RACIAL DISCRIMINATION IN CRIMINAL JUSTICE AND PENAL
SYSTEMS BE PREVENTED OR ERADICATED?
There is no exhaustive ‘formula’. It requires:
•
•
•
•
•
•
clear recognition that the problem exists;
comprehensive and transparent policies designed to combat such
discrimination;
genuine desire and commitment of governments, civil society leaders and
citizens to bring about effective and lasting change;
ratification and implementation of international instruments;
examination and precise definition of the causes and victims of
discrimination (which are specific to local and national circumstances);
acknowledgement of ‘the often mutating, systemic and hidden
manifestations of discrimination, sometimes at the highest levels of
governance’.
Preventive measures can include:
•
•
•
•
•
•
•
•
•
research (with particular focus on root causes);
developing clear and comprehensive national policies;
implementing race-awareness training and monitoring of personnel in the
system;
education and awareness-raising programmes for the general public;
active recruitment at all levels of the criminal justice system that reflects the
racial diversity of societies;
ensuring the right to an effective defence;
right to a translator / interpreter, free of charge, at all stages (in particular
during interrogation);
prompt and regular access to diplomatic representatives in the case of
foreign nationals;
clear and comprehensive communication and explanations.
Remedying measures can include:
•
•
•
•
legislative, policy, procedures and practice review;
providing specific programmes for social reintegration of vulnerable
persons upon release;
affirmative action recruitment procedures;
eradication of impunity of any personnel who engage in racist behaviour
(including disciplinary or criminal sanctions, full, rapid and effective investigations
of complaints (monitored), and right to appeal against arbitrary detention).
Appendix 9: Racism in Criminal Justice Systems
9
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APPENDIX 10
[DRAFT] SCREENING TOOL FOR CHILDREN WITH EMOTIONAL,
BEHAVIOURAL AND DEVELOPMENTAL CHALLENGES
Prepared by Children’s Developmental Centre (CDC), Lagos, Nigeria
(Revised following June 2003 workshop)
The essence of the screening is not to make a diagnosis, but to assist us to
identify street children who could have developmental disabilities. This is by
no means a tool that should be used alone but in conjunction with proper
observations and by professionals who have been trained in the field of
developmental disabilities when possible.
If by using this tool there are some concerns about the child, then to confirm these
apprehensions a doctor or clinical/educational psychologist must be asked to confirm
by using appropriate assessments. The idea of screening is to make sure that children
with special needs are given appropriate services when caught up in the juvenile
justice system and given suitable placements.
It is our opinion that the tool should continue to be developed to improve on its
sensitivity.
Below are some questions which should assist in screening the child under
observation, put a tick against the appropriate box.
PHYSICAL APPEARANCE
1
2
3
4
5
6
YES
NO
YES
NO
Does the child have mobility problems?
Does the child appear to have normal vision?
Does the child hear when spoken to?
Does the child respond slowly when spoken to?
Were any “fits” observed during screening?
Respond when spoken to?
Follow simple instructions?
Remember commands and carry them out?
EXPRESSION: Does the child
1
2
3
4
NO
Are there any unusual appearances?
COMMUNICATION & COMPREHENSION: Does the child
1
2
3
YES
Have any speech?
Have unintelligible speech?
Have difficulty in speech (poor speech)?
Speak well?
Please describe any other health issues & problems, related either by the child or through previous records
where available.
182
Appendix 10: Screening Tool – Mental Disability
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Below is a list of observable behaviours, tick against any observed in the child.
YES
1
2
3
4
5
6
7
8
9
10
NO
Avoids eye contact
Easily distractible
Frequently interrupts when spoken to
Has difficulty waiting turns
Reasons below his/her age
Is very overactive (e.g. won’t sit, paces about)
Displays odd or stereotyped behaviour (e.g. rocks body)
Is self-injurious (bites self, head-banging)
Aggressive towards others (fights staff and other children)
Engages in destructive behaviour
(breaks or throws things, burns property)
11
Depressed and moody
Other unusual behaviour
Included with the screening tool should be the child’s educational record (if available).
Get as much information from the child using these questions.
1
2
3
4
5
6
7
8
Have you been to school before?
What is the name of your last school?
What class where you in?
When last did you attend school?
What was your favourite subject in school? Which ones did you not like?
About how many students were in your class?
Did you attend a special school or have a special programme in your school?
Did you see a speech therapist, physiotherapist, social worker or psychologist?
And any other relevant questions.
9
Appendix 10: Screening Tool – Mental Disability
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APPENDIX 11
UNDERSTANDING MENTAL DISABILITY: TABLE OF SOME DEVELOPMENTAL DISORDERS
/ DIFFICULTIES, DEFINITION, DESCRIPTION, PHYSICAL MANIFESTATIONS AND
CAUSES10
10 Children’s Developmental Centre (CDC),
Lagos, Nigeria. Training / resource materials,
National Workshop on the Human Rights of
Street Children within the Juvenile Justice
System of Lagos State, 3 June 2003,
reproduced in Human Development Initiatives
and Consortium for Street Children, Street
Children and the Juvenile Justice System in
Lagos State, 2004.
184
DISABILITY
DESCRIPTION
PHYSICAL MANIFESTATION CAUSES
MENTAL
DISABILITY
OLD TERM
MENTAL
RETARDATION
An adaptive and intellectual functioning No physical manifestation
significantly below average, language
unless co-morbid with
and communication impairments
down syndrome.
- Wide range of impairment and thus of
function
• Prenatal
• Perinatal
• Postnatal
• Environmental
DOWN
Most common cause of mental
SYNDROME
disability caused by a chromosomal
OR TRISOMY 21 aberration (on chromosome 21)
retardation may range from moderate
to severe
Oval shaped eyes that
have an upward slant,
folds at the corner of
eyes (lower lid), wide and
flat nasal bridges, a small
mouth with a flat roof
which makes the tongue
protrude somewhat,
stubby fingers, short and
Stuart physique.
Chromosomal
abnormality (three
instead of two
copies of
chromosome 21
are present).
More common
among women
having babies when
they are older (40
years and above).
LEARNING
DISABILITIES
Reading, mathematics or written
expression performance (that is)
substantially below levels expected
relative to the person’s age, IQ, and
education.
Dyslexia: difficulty reading well or
recognizing words.
Dysgraphia: difficulty writing clearly
and legibly.
Dyscalculia: difficulty in accurately as
well as rapidly recalling mathematical
facts.
No physical manifestation
unless co-morbid with
some other physical
disability.
Heredity
Brain abnormalities
Cerebral palsy
Mental disability
CEREBRAL
PALSY
Affects movement & posturing of the
child
• Due to non progressive defect of
the brain.
• A term used to describe a variety of
neurological conditions
• Results in impaired motor function
• Affects one arm or leg
(monoplegic)
• Affects both legs
(diplegic)
• Arm and leg on the
same side of body
(hemiplegics)
• Both arms and both
legs / whole body
(Quadriplegic)
• Poor maternal
nutrition.
• Infection
• Premature birth
• Insufficient
oxygen at time of
birth
• Accidents
• Brain damage
prior, during, or
shortly after birth.
• Unknown
ATTENTION
DEFICIENT
HYPERACTIVITY
DISORDER
(ADHD)
• Persistent lack of attention and/or
over activity.
• More severe than the pattern
development
• Symptoms are present before age 7
• Interferes with functioning in more
than one setting.
None
• Heredity
• Toxic elements in
the environment
• Refined sugar
• Lead poisoning
• Nicotine
Modelling after a
hyperactive person
particularly a child
Upbringing
style of parents
e.g.
–authoritarian
upbringing.
Appendix 11: Understanding Mental Disabilities
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DISABILITY
DESCRIPTION
PHYSICAL MANIFESTATION CAUSES
HEARING
IMPAIRMENT
May be mild, moderate, severe or
None
profound depending on degree of
decibel loss (sound loudness). It may
be conductive that is in conducting
sound (in middle or outer ear), or it may
be sensory- neural that is it affects the
pathway from ear to brain; involves the
inner ear.
• Heredity
• Maternal illness
such as rubella
during pregnancy.
• Congenital
SPEECH /
LANGUAGE
DIFFICULTIES
The language disorders range from
having difficulties finding the right
words to being totally unable to use
words i.e. being nonverbal.
* Stuttering; a rhythm disorder in
which words are produced individually
instead of sequentially.
* Articulation disorders arise when
words are substituted &/or omitted
* Motor speech disorder is seen in
children with CP and is due to poor or
inadequate control of oral motor
muscles
*Can result from
any of the causes
of any disability.
ATTENTION
DEFICIENT
DISORDER
(ADD)
Marked by a gross inability to pay
None
attention. It should be noted that a
child could have ADD and not be
hyperactive. This differentiates the ADD
child from a child with ADHD
Same as ADHD
CONDUCT
DISORDER
Marked by frequent acts/behaviors that None but could co-occur
violate the basic rights of others
with any physical disability
Goes beyond the mischief & pranks
common among children & adolescents.
• May be inherited
in very few cases
• After parents or
significant others
• Socio-economic
disadvantages
• Lack of parental
supervision.
None (except if the child
has a physical
impairment from CP)
Behavior usually includes aggression,
damaging property, lying, stealing,
cruelty toward people or animals, lack
of remorse, viciousness.
Persistent pattern of very antisocial
behavior that is usually criminal.
May begin in childhood and carry on
through adulthood or may begin and
end in adolescence
OPPOSITIONAL
DEFIANT
DISORDER
• Repeated refusal to comply with
requests from adults
• Deliberately doing things to
annoy others
• Losing temper very early
None but could co-occur
with any physical
disability
Same as Conduct
Disorder
9
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APPENDIX 12
GUIDELINES FOR RECOGNIZING AND RESPONDING TO
TRAUMATIZED CHILDREN 11
Katherine Porterfield, Ph.D., Bellevue/NYU Program for Survivors of Torture
Myths about children and trauma
•
•
•
•
Children are not affected because they are too young or immature to understand
Bringing up the past only makes things worse for children
If children do not talk about the trauma, they must not be affected
They will eventually forget
The three main components of trauma reactions
•
•
•
Reexperiencing
Hyperarousal
Avoidance
What do trauma symptoms look like in children?
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Clingy behavior
Increased fears and worries, especially related to the trauma
Feeling suddenly scared or “jumpy”
Nervousness
Repetitive play or drawings
Sleep difficulties, including nightmares
Feeling sad/depressed
Crying more than usual
Having lots of aches and pains
Being angry, irritable or aggressive
Daydreaming / having difficulty concentrating
Emotional numbing
Social withdrawal
School avoidance
Avoiding reminders of the trauma
Diminished sense of the future
Overreactions to environmental changes, noises
Factors affecting children’s responses to trauma
•
•
•
•
•
Parental reactions to the trauma
Degree of exposure to traumatic events
Degree of disruption of family unit and routine in the aftermath of trauma
Availability of positive social supports (i.e. school, community organizations,
extended family)
Overall resilience and competence of child
Identification
11 Adapted from the presentations ‘Caring for
Traumatized Refugee Children: Identification,
Advocacy and Treatment’ and ‘Recognizing and
Responding to Traumatized Children in Schools:
Guidelines for Teachers and Guidance
Counselors’ by Katherine Porterfield, Ph.D.,
Bellevue/NYU Program for Survivors of Torture,
www.survivorsoftorture.org , 2004.
•
•
•
•
Assess thoroughly
Get history—knowledge of pre-trauma functioning is important
Include teachers as reporters
Use standardized measures—CBCL, Connors, ADIS
Advocacy
•
•
•
186
Identify the child’s caregivers (parents, guardians, older siblings, teachers, NGO
workers, medical staff, social services)
Educate caregivers about the child’s experience
Educate caregivers about trauma reactions
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•
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Normalize
Enhance compassion and flexibility
Treatment for the traumatized child
•
•
•
•
Normalize as a way to improve functioning and adapt to new environment
Strengthen parental / caregiver responses and coping
Involve the whole family / children’s social support structures
Emphasize resource-building and strengths
FOUR KEY AREAS FOR RESPONDING TO TRAUMATIZED STUDENTS
1
Communication
•
•
•
•
•
•
•
Explain goals of the meeting
Establish rapport/safety
Make sure the context is appropriate (are other children present), and gently
redirect if necessary
Explain limits of confidentiality
Listen to the child closely
Assess for suicidal/homicidal ideation
Validate and reflect back the emotion that they have expressed
Acknowledge the child’s strength
Follow their lead on the trauma story—Do not “dig” for details or “force” the issue
Use displacement as a technique: “Some teenagers have said they feel …”
Let them draw a picture or tell a story—ask them to imagine how things could be
“fixed” or made better
Answer questions simply
Provide appropriate and necessary information
Do not heighten fears by giving too much information
Let them do something active to help
2
Coping
•
The adults in a traumatized youngster’s life are models of coping: parents,
teachers, guardians, older siblings, NGO workers etc.
Normalize the child’s feelings, but help contain the child’s reactions if they are
out of control
•
•
•
•
•
•
•
•
•
3
Reassurance
•
•
•
•
•
Emphasize that the child is safe and will be cared for
Provide information about the efforts being made to address the situation
Create opportunities for children to ask questions
Do not overwhelm the child with too many details
Avoid being falsely reassuring: you can provide hope, but be careful not to
provide false hope
4
Routine
•
•
•
•
Help create a consistent and predictable routine in the child’s life
Whenever possible give notice of significant changes before they occur
Help children regain a sense of control and power
Be flexible enough to deviate from the routine if the children become
overwhelmed
Do not involve children in worries about logistical issues
[In institutional settings] Practice emergency procedures and drills
•
•
9
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TIPS FOR CAREGIVERS: AVOIDING SECONDARY TRAUMATIZATION
Frequent experiences and feelings of caregivers after trauma
•
•
•
•
•
•
•
•
Fatigue, sadness, depression, and numbness
Cynicism, discouragement, frustration, and “compassion fatigue”
Nervousness, jumpiness, tension, sleep disturbance, and nightmares related to
the disaster
Somatic problems: headaches, stomach problems, joint pain
Doubting your own competency and abilities
Feelings of helplessness, denial, irritability, anger and rage
Feeling that you are doing something ”small” or insufficient that will not affect
the root causes of the problem
Frustration due to inadequate resources and equipment
Things that can help
•
•
•
•
•
•
•
•
•
•
•
Spend time with important people in your life (e.g. colleagues, family and
friends)
Acknowledge and talk about your feelings
Give yourself permission to “feel rotten”
Don’t burn out: Take breaks and take care of yourself
Eat well and try to get as much rest as possible.
Avoid things like too much sugar or caffeine
Avoid numbing the pain with the overuse of drugs or alcohol
Make as many decisions as possible that give you a feeling of control over your
life
Structure your time and try to keep busy with activities that you value
Give yourself permission to do things that you enjoy – e.g. exercising, listening to
music, laughing
Set realistic goals for yourself: realize we can help survivors to cope, but we
cannot “fix” the situation
APPENDIX 13
GUIDE TO THE CONSORTIUM FOR STREET CHILDREN’S
URGENT ACTION PROCEDURE
What is it?
•
A set of letters to ambassadors and other relevant authorities highlighting
and calling for action on human rights violations of street children in a
particular country. Organisations typically call for the full investigation of the
case and prosecution of those responsible, as well as the awarding of
compensation to the victims or their families.
•
The letters are based on information received from CSC’s members and
associates and via OMCT (World Organisation Against Torture).
•
The letters are drafted by CSC but sent in the name of the Bar Human
Rights Committee of England and Wales (BHRC) in order to provide
anonymity for our organisations and to maximise impact. [BHRC is an
independent group of barristers from the well respected and influential
professional lawyers’ association, who work on a voluntary basis to uphold
international human rights standards.]
•
As well as targeting national government personnel and ambassadors directly,
letters are also sent to UK ambassadors and are copied to the relevant country
desk officers at the UK Foreign and Commonwealth Office in London.
•
Letters can also be copied to newspapers in the country concerned.
•
The tone of the letters is cordial yet concerned, with an emphasis on constructive
dialogue.
188
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Why use it?
•
It can bring immediate attention to individual cases of human rights
violations against street children in a particular country.
•
It can raise awareness of more systematic abuses (i.e. by police / in detention
etc.) amongst relevant government officials and the media.
•
By using email, once we have received your information, the letters can be sent
out when the events are still fresh in the minds of the people concerned.
•
Follow-up letters are also possible to maintain pressure for updated information
and action.
•
It develops a constructive dialogue between NGOs and government officials /
statesmen which can be called upon in future advocacy work.
•
By working in association with the BHRC, the impact is greater than sending an
appeal directly from an NGO.
•
By involving the UK government, we can raise awareness and encourage the
UK government to consider street children issues in its bilateral relations with
other governments.
How does it work?
Should you wish to use this procedure, your organisation will need to send us details
of the incident or situation including, where possible:
•
names and ages of victims
•
place where the incident occurred
•
date of occurrence
•
time of occurrence
•
names of perpetrators (if known)
•
a contact name at your organization
•
contact details (fax, email or post) of who you wish us to send letters to
•
any action you wish to be taken
Please make every effort to ensure that all details are thoroughly verified.
Then, e-mail it to us at <[email protected]> and we will formulate
your data into a letter for the Bar Human Rights Committee. A copy, along with any
further correspondence, will be forwarded to your organization.
Who can use it?
•
Any CSC member or associate.
What can it achieve?
•
The urgent action letters are a convenient way to get issues into the right hands.
•
We receive replies detailing the steps that the government representative
plans to take and outlining wider government policy issues on street
children. In such cases CSC then contacts organisations working on the ground
for their responses which are then included in follow-up letters.
•
Although feedback on specific situations is often difficult to obtain, and it is
difficult to assess the impact of such letters in concrete terms, we still believe that
this process of awareness-raising at influential government level is worthwhile.
Should I use it?
•
All appeals will be anonymous unless you particularly wish your organisation
to be named. In order to avoid negative repercussions, not even the Consortium
is mentioned.
•
If you have an individual case or wider situation of human rights abuse
against street children and are either unable to act on it yourselves, or if you
wish to strengthen your own response to it, then CSC’s urgent action procedure
may be of use to you.
For further information, please contact the Advocacy Officer at:
Unit 306, Bon Marché Centre,
241-251 Ferndale Road, London SW9 8BJ, UK
Tel: +44 (0)20 7274 0087 / Fax: +44 (0)20 7274 0372
Email: [email protected]
Appendix 13: Guide to CSC’s Urgent Action Procedure
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APPENDIX 14
THE UN STUDY ON VIOLENCE AGAINST CHILDREN 12
On 12 February 2003, United Nations Secretary-General Kofi Annan appointed Paulo
Sergio Pinheiro of Brazil as the independent expert to lead a global study on violence
against children. The purpose of the study is to provide an in-depth picture of the
prevalence, nature and causes of violence against children. It will put forward
recommendations for consideration by Member States, the UN system and civil
society for appropriate action, including effective remedies and preventive and
rehabilitative measures at the national and international levels.
The study will be guided by the Convention on the Rights of the Child which
emphasizes children's rights to physical and personal integrity, and outlines States
parties obligations to protect them from "all forms of physical or mental violence",
including sexual and other forms of exploitation, abduction, armed conflict, and
inhuman or degrading treatment or punishment. It also obliges the State to enact
preventive measures and ensure that all child victims of violence receive the support
and assistance they require.
The UN General Assembly called for the study in 2001 acting on the recommendation
of the Committee on the Rights of the Child. In overseeing the implementation of the
Convention on the Rights of the Child, the Committee held two days of general
discussion on the issue of violence against children within the family and in school
(2001) and state violence against children (2000). The request for an international
study on the question of violence against children was an outcome of these days of
discussion.
The independent expert, Mr. Paulo Sergio Pinheiro, is a former Secretary of State for
Human Rights of Brazil and has directed the country's Centre for the Study of Violence
since 1990. He will hold the position for two years and carry out his mandate in close
collaborations with the Office of the High Commissioner for Human Rights (OHCHR),
the United Nations Children's Fund (UNICEF) and the World Health Organization
(WHO).
Opportunities for NGO Involvement
12 Adapted from
http://www.unhchr.ch/html/menu2/6/crc/study.h
tm and ‘The UN Study on Violence against
Children: A preliminary Guide to NGO
Involvement’ issued by the NGO Group on the
Convention on the Rights of the Child, Subgroup on Violence and Children, 2003.
190
•
National Networks and Coalitions: National NGOs are encouraged to form
and/or use existing national networks or coalitions to begin collecting relevant
information for the study, prepare consultations about violence against children
in their country, and plan ways to follow-up the study and its recommendations.
•
Sub-group on Violence and Children: The NGO Group on the Convention on
the Rights of the Child has established a new subgroup on violence against
children. The subgroup will work to engage NGOs in the preparation and followup to the study, to engage the Committee on the Rights of the Child and other UN
mechanisms on violence against children, and to seek ways to ensure that
commitments made related to violence against children at the UN Special Session
on Children are fulfilled. To join the sub-group, send an e-mail indicating your
interest and confirming your support for full implementation of the Convention
on the Rights of the Child to the group’s co-conveners, Melanie Gow, World Vision
International ([email protected]) and Jo Becker, Human Rights Watch
([email protected]).
•
Violence against Children E-mail list: The Subgroup has established a new email list to facilitate communication with NGOs about the study. The e-mail list
will provide information on how NGOs can contribute to the study, regular
updates as the study progresses, and information on regional consultations and
other related events. To sign up to the e-mail list, send a message to
[email protected]
•
NGO Advisory Group: A small advisory group has been established and is
advising on all aspects of the establishment of the Study, providing the
Appendix 14: UN Study on Violence Against Children
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independent expert and study secretariat with input on the study's content,
process and outcomes, encouraging and facilitating broad and effective NGO
involvement in the study, and helping to mobilize effective follow-up to the
study.
•
Further information: See http://www.unhchr.ch/html/menu2/6/crc/study.htm
for more details, including a copy of the official questionnaire sent to
governments in 2004.
APPENDIX 15
INTERNATIONAL RESOURCES FOR JUVENILE JUSTICE 13
UN - general
•
•
•
•
•
•
OHCHR: United Nations Office of the High Commissioner for Human Rights
www.unhchr.ch
UNAIDS: Joint UN Programme on HIV/AIDS www.unaids.org
UNDP: United Nations Development Programme www.undp.org
UNESCO: United Nations Education, Scientific and Cultural Organisation
www.unesco.org
UNIFEM: United Nations Development Fund for Women www.unifem.undp.org
WHO: World Health Organisation www.who.int (Health in Prisons Project
www.hipp-europe.org)
UN - child-specific
•
•
•
UN Committee on the Rights of the Child www.unhchr.ch
UNICEF: United Nations Children's Fund www.unicef.org
UNICEF / ICDC: International Child Development Centre www.unicef-icdc.org
UN - justice
•
•
UNICRI: United Nations Interregional Crime & Justice Research Institute
www.unicri.it
UNODCCP / CICP: United Nations Office for Drug Control and Crime
Prevention in Vienna - Centre for International Crime Prevention
www.odccp.org/crime_prevention.html
UN – regional / justice
•
•
•
•
UNAFEI: United Nations Asia & Far East Institute for the Prevention of Crime
and the Treatment of Offenders www.unafei.or.jp
UNAFRI: United Nations African Institute for the Prevention of Crime and the
Treatment of Offenders www.unafri.or.ug
HEUNI: European Institute for Crime Prevention and Control www.heuni.fi
ILANUD: United Nations Latin American Institute for the Prevention of Crime
and the Treatment of Offenders www.ilanud.or.cr
International / multilateral policy / development cooperation
•
•
•
International Monetary Fund (IMF) www.imf.org
World Bank (WB) www.worldbank.org
Commission of the European Union (EU) www.europa.eu.int
Govt policy / bilateral development cooperation
•
•
•
13 Adapted (with additional information from
the author) from Roy, N. and Wong, M., Juvenile
Justice Review and Training Documents
prepared for Save the Children UK, 2002-3.
Australia Aid www.ausaid.gov.au
Canadian International Development Agency (CIDA) www.acdi-cida.gc.ca
Danish Agency for International Development (DANIDA) www.um.dk/danida
Appendix 15: International Resources for Juvenile Justice
191
9
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•
•
•
•
•
•
•
Page 192
Ireland Aid www.gov.ie/iveagh
Japanese International Cooperation Agency (JICA) www.jica.go.jp
Netherlands Development Cooperation www.minbuza.nl
Swedish International Development Cooperation Agency (SIDA) www.sida.se
UK Department for International Development (DfID) www.dfid.gov.uk
UK Foreign & Commonwealth Office (FCO) www.fco.gov.uk
United States Agency for International Development (USAID) www.usaid.gov
Other donors
•
•
•
•
Esmee Fairbairn Foundation (UK) www.esmeefairbairn.org.uk
Ford Foundation www.fordfound.org
Oak Foundation www.oakfnd.org
Open Society Institute (Soros Foundation) www.soros.org/osi
Professional / Academic
•
•
•
•
•
•
American Bar Association, Center on Children and the Law
www.abanet.org/child/home2.html
The Children’s Legal Centre (CLC), Essex University www2.essex.ac.uk/clc/
The Crime and Justice Research Centre, University of Wellington, New Zealand
www.vuw.ac.nz/cjrc
International Centre for Prison Studies www.prisonstudies.org/
International Institute For Child Rights & Development (IICRD)
web.uvic.ca/iicrd/
Justice Center, University of Alaska, Anchorage
justice.uaa.alaska.edu/jcinfo.html
International NGOs
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Amnesty International (AI) www.amnesty.org
Child Helpline International (CHI) www.childhelplineinternational.org
Child Rights Information Network (CRIN) www.crin.org
Consortium for Street Children (CSC) www.streetchildren.org.uk
Defence for Children International (DCI) and the International Network for
Juvenile Justice, (INJJ) www.defence-for-children.org
Defence for Children International, Netherlands www.defenceforchildren.nl
(Children in Prison project)
Glasgow University for Europe’s Children www.eurochild.gla.ac.uk
Human Rights Watch www.hrw.org
International Centre for Criminal Law Reform and Criminal Justice Policy,
Vancouver www.icclr.law.ubc.ca
International Institute for the Rights of the Child (IDE) (Institut International
des droits de l’énfant) http://www.childsrights.org/site_en
Penal Reform International www.penalreform.org
Save the Children (SC)
o SC UK www.savethechildren.org.uk
o Rädda Barnen SC Sweden www.rb.se
o International SC Alliance www.savethechildren.net
Terres des Hommes (TdH) www.tdh.ch
World Organisation Against Torture (OMCT) www.omct.org
World Vision International (WVI) www.wvi.org
North America
•
•
•
•
192
Annie E. Casey Foundation (AECF) www.aecf.org
Coalition for Juvenile Justice (CJJ) www.juvjustice.org
Conflict Resolution Network (Canada)
www.crnetwork.ca/restorativejustice/index.asp
Office of JJ and Delinquency Prevention (US Govt) http://ojjdp.ncjrs.org
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UK NGOs
•
•
•
•
•
•
•
•
•
•
The Children’s Society, UK www.the-childrens-society.org.uk
Howard League For Penal Reform www.howardleague.org
Independent Monitoring Board (IMB) (UK govt)
www.homeoffice.gov.uk/justice/prisons/imb
Magistrates Association www.magistrates-association.org.uk
Mediation UK www.mediationuk.org.uk
NACRO Web:www.nacro.org.uk/services/youthcrime
Prison Reform Trust www.prisonreformtrust.org.uk
Restorative Justice Consortium www.restorativejustice.org.uk
Rethinking Crime and Punishment www.rethinking.org.uk
Shape the Debate: www.shapethedebate.org.uk
Consortium for Street Children members as of May 2004
NAME OF ORGANISATION
WEBSITE
Aid for Children of El Salvador (ACES)
www.magicchildren.co.uk
Amnesty International (Children's Human Rights Network)
www.amnesty.org
Anti-Slavery International
www.antislavery.org
Action for Children in Conflict
www.actionchildren.org
Action International Ministries UK
www.actionintl.org
Calcutta Hope
Casa Alianza UK
www.casa-alianza.org
ChildHope
www.childhopeuk.org
Child Welfare Scheme
www.childwelfarescheme.org
Child at Risk Foundation (CARF -UK)
www.carf-uk.org
Children of the Andes
www.childrenoftheandes.org
Child-to-Child Trust
www.child-to-child.org
ECPAT
www.ecpat.org.uk
EveryChild
www.everychild.org.uk
GOAL
www.goal.ie
Hope for Children
www.hope-for-children.org
International Child Development Programmes
www.icdp.info
International Childcare Trust
www.ict-uk.org
International Children's Trust
www.childrens-trust.org
International HIV/AIDS Alliance
www.aidsalliance.org
International Planned Parenthood Federation (IPPF)
www.ippf.org
Jubilee Action
www.jubileeaction.co.uk
Let the Children Live!
www.letthechildrenlive.org
Newham Bengali Community Trust
www.nbct.org.uk
Plan UK
www.plan-international.org.uk
Questscope
www.questscope.org
Railway Children
www.railwaychildren.org.uk
Save the Children Fund UK
www.savethechildren.org.uk
SKCV Children's Trust (UK)
www.skcv.com
Street Child Africa
www.streetchildafrica.org.uk
The Rocket Trust
Themba Facilitate
www.themba.tv
Tigers Club Project
www.tigersclub.org
The Toybox Charity
www.toybox.org
UK Committee for UNICEF
www.unicef.org
World Vision UK
www.worldvision.org.uk
YCARE International
www.ycare.org.uk
9
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An Outside Chance: Street Children and Juvenile Justice

Transcription

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