CHILDREN IN CONFLICT WITH THE LAWOverviewChildren come into contact with the justice system for two main reasons: there are in need of care and protection orthey are in conflict with law. The latter category includes children labeled as ‘uncontrollable’ or accused of criminalactivities. The reality is that all these children are very vulnerable. In 2011, the Office of the Children’s Advocateclearly reported that there is little difference between a child in need of care and protection, uncontrollable child and achild in conflict with the law in terms of family background. In other words, they all need care and protection from thestate.The justice system in Jamaica is based on the principle of retribution, where the state inflicts punishment on an allegedoffender who has been suspected of or found guilty of violating law and order. Children who come in conflict with thelaw as well as those who find themselves in residential child care facilities because they are deemed in need of careand protection are not exempted from retributive punishment meted out by the state.The latter group of children, those who may find themselves in state care through no fault of their own, are sometimes,placed in detention facilities with children who are in conflict with the law. This should never happen. Even worse,both children in need of care and protection and those who have had brushes with the law are sometimes held incustody with adult criminals. This is in direct violation of both domestic and international law.Children in conflict with the law often just need a lawyer who is able to handle their court case, ensure they are notheld with adult criminals and also to ensure that less restrictive punishments are considered while their developmentalneeds are met by the state. It is only when violent crimes are committed and public safety is a concern, that youngoffenders should be placed in detention facilities while their cases are underway.In 1999, we got a clear overview of the situation of children when Human Rights Watch wrote a report about childrenin police detention and government institution entitled ‘Nobody’s Children’. With more than 13 years later, variousgovernmental plans, research, enquiries and policies, little has changed.Tragically, many of the findings of the report still bear truth today: “…many children-often as young as twelve orthirteen-are detained for long periods, sometimes six months or more, in filthy and overcrowded police lockups…Thechildren are often held in the same cells as adults accused of serious crimes, vulnerable to victimization by theircellmates and to ill-treatment by abusive police; and virtually always, they are held in poor conditions, deprived ofproper sanitary facilities, adequate ventilation, adequate food, exercise, education, and basic medical care.” 1CHILDREN IN CONFLICT WITH THE LAWThe Process: When a child (12 and older) is arrested, the police officer should take him or her to the station andcontact his/her parents or guardians as well as the Child Development Agency (CDA); even though the CDA isresponsible for ALL children when children come in conflict with the law, the agency has stated that these minors arenot its responsibility2. Often, there are cases where parents are not contacted and they are unaware of the whereaboutsof their children3. A child should also be questioned in the presence of an adult as he/she has that right. However, theyare sometimes interrogated without an adult being present. A child should also stay at the police station (lock up) nolonger than 48 hours. He/she should be brought to court and if he/she were charged with an offence by the police, thejudge will determine if bail is to be granted or the child is to be placed in remand (there is currently no remand centersfor girls). When the trial takes place and the child is convicted of an offence, the judge enters a correctional order andthe DCS assumes custody of the child and places him/her in one of the juvenile correctional facilities or adult prisons.1Human Rights Watch. (1999). Nobody’s Children: Jamaica’s Children in Police Detention and Government Institutions, p. 8.2The lack of specificity with the CCPA, for which JFJ has continued to lobby for strengthening, has allowed for lack of clarity and subsequentshirking of responsibility by the CDA when children come in conflict with the law and when tragedy strikes those housed in juvenilecorrectional facilities. Despite the fact that children who are accommodated in juvenile correctional centres are the responsibility of theDepartment of Correctional Services (DCS) as it relates to serving out their custodial sentences, their condition, care and well-being also fallunder the purview of the CDA and its lead Ministry as they are the entities under the CCPA, with responsibility for all Jamaican children. Achild is defined under the Act as, “a person under the age of eighteen years,” (Preliminary§2 (1)). This definition should then include childrenwho are in conflict with the law, are in legal custody and who are sent to juvenile correctional centres as discussed in §76 (1)(f) of the Act.”3Despite the fact that it has been established that children in conflict with the law are also children in need of care and protection, for thosedeemed to be in need of care and protection but have committed no unlawful offence, the CDA tries to claim responsibility for those children buteven when these children end up at the police station and the CDA is notified, sometimes no representative shows up. As it relates to thesechildren they should be taken to a place of safety where they should stay for another 48 hours, during which time they should be assessed andsent to residential care based on the results of their assessment.
Children in these institutions receive some educational and vocational training, and provision is made for theirexercise and recreation.The Numbers: As stated in the overview children are often placed alongside adults in police lock ups, in remandcentres or in prison. This is in contravention with domestic and international laws. Children are kept in Fort AugustaCorrectional Centre as well as Horizon Adult Remand Centre where the majority of inmates are serving life sentences.In various cases, we have seen children often kept in lock down with little activities. At any one time, there are about20 to 50 juveniles in police lockups. As of November 30, 2012, there were 37 children in adult prisons. Data from theDCS indicates that the years 2007, 2008, 2009, 2010 the following numbers of female children have been kept in FortAugusta, the adult correctional centre for women: 46, 53, 41 and 22 respectively. The numbers varies from week toweek.THE LEGAL FRAMEWORKDomestic Instruments Applicable to Children:- The Child Care and Protection Act (CCPA) <http://www.moj.gov.jm/node/731>- The Education Act <http://www.moj.gov.jm/node/39>- The Offences Against the Persons Act <http://www.moj.gov.jm/node/96>- The Sexual Offences Act <http://www.moj.gov.jm/node/701>- The Corrections Act <http://www.moj.gov.jm/node/744>Regional and International Instruments Applicable to Children:- United Nations Convention Rights of the Child (CRC) <http://www2.ohchr.org/english/law/crc.htm>- United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules)<www2.ohchr.org/english/law/pdf/beijingrules.pdf>- Declaration on the Rights of the Child <http://www.un.org/cyberschoolbus/humanrights/resources/child.asp>- Universal Declaration of Human Rights <http://www.un.org/en/documents/udhr/index.shtml>- American Convention on Human Rights (ACHR) <http://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights.htm>- International Covenant on Civil and Political Rights (ICCPR) <http://www2.ohchr.org/english/law/ccpr.htm>- International Covenant on Economic, Social and Cultural Rights (ICESR)<http://www2.ohchr.org/english/law/cescr.htm>THE RESPONSIBLE STATE AGENCIESChild Development Agency (CDA) <http://www.cda.gov.jm/>- The Child Development Agency (CDA) which currently operates under the Ministry of Youth and Culturewas created in 2004 from the merger of the Child Services Division, the Adoption Board and the ChildSupport Unit with “statutory responsibility for children who are in need of care and protection [that is] thoseabused, neglected or abandoned as well as for children who are experiencing behavioural problems”4. TheCDA also “monitors the adoption of international child care conventions locally and aims at developing andpromoting its position on children’s issues internationally”5.Office of the Children’s Registry (OCR) <http://www.ocr.gov.jm/About%20US.html>- To compliment the functions of the CDA, a Children’s Register was mandated through the CCPA regulationsto be created. In 2007, the Office of the Children’s Registry was opened as an information storehouse forreports of abuse, abandonment and neglect affecting children.Centre for the Investigation of Sexual Offences and Child Abuse (CISOCA)- Reports made to the Office of the Children’s Registry would be transferred to a branch of the JamaicaConstabulary Force (JCF), the Centre for the Investigation of Sexual Offences and Child Abuse (CISOCA), adevelopment of the Police Rape Unit, to be investigated. It is mandated to create an atmosphere which willencourage victims to report incidents of sexual offences and child abuse; to ensure efficient and effectiveinvestigation into allegations of abuse; to enhance the rehabilitation of victims through counselling andtherapy and to conduct public education programmes on sexual offences and child abuse.4www.cda.gov.jm5Ibid
Department of Correctional Services (DCS) <http://www.dcsj.net/>- For children who come in conflict with the law, they are housed in juvenile correctional centres formallyknown as approved schools which partially fall under the purview of the Department of Correctional Services(DCS), an agency which falls under the Ministry of National Security. Children between ages 12 and 18 areremoved from their normal environment by the court and placed in these facilities to receive alternativeresidential care, rehabilitation and academic and vocational education. The DCS is in charge of operations ofthree (3) juvenile correctional centres (Hill Top, Diamond Crest and Rio Cobre), two (2) juvenile remandcentres (St. Andrew and Metcalfe Street) and two (2) adult remand/prisons where children and adults sharethe facilities (Fort Augusta and Horizon).Office of the Children’s Advocate (OCA) <http://www.ocajamaica.gov.jm/>- To oversee these mentioned state agencies with various child care and protection functions, the Office of theChildren’s Advocate (OCA) was established in 2006 under the CCPA as a commission of Parliament. It hadthe purpose of protecting and enforcing the rights of children”, provide legal representation for childrenbrought before court and to always act in the child’s best interests. The OCA also receives complaints andconducts investigations into allegations made by or on behalf of children as well as makes recommendationsto Parliament.What needs to be done?- Each child has the right to an independent defence counsel at all stages of the criminal proceedings which isessential to ensure that he/she get a fair trial. Children should not be put in police lock ups or in adult prisons,their punishments should be proportionate to the offence committed and non-custodial sentences should beconsidered;- There is a need for a child-friendly justice system, guaranteeing effective implementation of childrens rightsprovisions, at the highest possible level;- Appropriate resources should be allocated to the key institutions responsible for children;- There should be adequate and diverse training for the professionals that are in contact with the childrenincluding policemen, judges and correctional officers;- Children who are accused of having infringed the penal law still need to be treated in a manner consistent withthe promotion of the child’s sense of dignity and worth. At all times, the child’s age should be taken intoaccount so that there is a focus on rehabilitating and reintegrating that child into mainstream society so thathe/she can play a constructive part in society; and- There needs to be a focus on psychological assessments and therapy, non-custodial sentences, restorativejustice and investments in community-based options for reintegration.