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Child Justice

On the afternoon of 12 February 1993, not far from the world-famous Anfield football stadium in Liverpool, a train hurtled over a 2 year old toddler in its tracks. James Bulger was already dead, having been horrifically tortured and murdered a short while earlier, but what generated shocked attention – of policy-makers, legislators, psychologists, criminologists and just about everyone else – was the fact that the two murderers were 10 years old. A strong school of thought holds that society – and, perhaps, the parents – were to blame rather than those youngsters.

So, when is a child guilty of a crime? Can society hold accountable such a 10 year old? What about an orphaned street-kid, stealing bread for himself and his younger sister? If so, according to what standards, what procedures, and what rules is he to be tried? What is the appropriate punishment?

These, and many other such questions, are within the focus of the Child Justice Act 2008,1 which aims to establish a system for bringing to justice children who are accused of committing ‘offences’. The Act obviously deals more with this (than creating even more offences) but, for good reason, levels of accountability are high when it comes to handling our future society.

For the purposes of the Act, a “child” is someone under the age of 18 years.

A. Preliminary Enquiry

A “preliminary enquiry” is an informal pre-trial procedure (which may take place in any suitable place) and is held to establish the most appropriate course (of several options available) to ensure the administration of justice in respect of the alleged commission of an offence by a child.

  1. When a preliminary enquiry has been held, a child in detention in respect of the offence can, pending the next steps, be released into the care of a parent (or an appropriate adult or guardian). If this happens, the presiding officer warns the parent to ensure that the child appears for the next step (for example, the trial at a Child Justice Court). It is a criminal offence if the parent (etc.) fails to ensure the child’s appearance at the next step.2

  2. This will also be the case where a child, or his parent, or an appropriate adult or a guardian who has been directed to appear at a preliminary enquiry (whether in terms of a written notice, a summons, or a warning by a presiding officer) or is otherwise obliged to appear at a preliminary enquiry, and fails to appear (or to remain in attendance at the proceedings).3

  3. The publication of information which reveals the identity of a child implicated in a preliminary enquiry (including as a witness) is forbidden. It is a crime to publish such information.4

B. Assessment and the trial

  1. Then, every child who is alleged to have committed an offence must be assessed by a probation officer. The purposes of the assessment are manifold, all aimed at an eventual determination in the best interests of the child. The information obtained at an assessment is considered confidential, and it is an offence if any such information is used for a purpose other than at a preliminary enquiry, or as authorized by the Act.5

  2. It is a criminal offence also to publish information which reveals the identity of a child implicated in a trial in the Child Justice Court (including as a witness.)6

  3. Unless directed by the Child Justice Court, a child must be assisted by a parent, appropriate adult or guardian in its proceedings. If the parent (etc.) has been warned (or subpoenaed) to attend the proceedings, he commits a criminal offence by failing to do so.7

C. Expungement of Criminal Records

The criminal conviction of child can be expunged8 after a certain period of time (5 or 10 years, depending on the crime) if he has not been convicted of a similar or more serious offence during that period. Any person who expunges the criminal record of any child without an authorising certificate from the Director General in the Department of Justice and Constitutional Development, or who does so intentionally or in a grossly negligent manner, commits an offence.9

  1. As amended; the lastest amendment was effected by Act 7 of 2013. 

  2. Section 24(5) read with Section 24(7)(e). 

  3. Section 46 read with Section 24(7). 

  4. Section 45(1) read with Section154. 

  5. Section 36(2) read with Section 36(1)(a). 

  6. Section 63(6) read with Section 154(3). 

  7. Section 65(3) read with Section 65(7) and Section 24(7)(e). 

  8. i.e. deleted, cancelled. 

  9. Section 87(5)(c).