The Right Not to Lose Hope - Violence Against Children - East Asia ...

The Right Not to Lose HopeChildren in conflict with the law – a policy analysisand examples of good practiceThe Right Not to Lose Hope addresses the issues facingchildren who are in conflict with the law. Part 1 analysesthe experiences and situation of these marginalisedchildren. Rather than focusing solely on children in thejustice system, it looks at the broader context of thesechildren’s lives – in particular, the failure of care andprotection systems and criminalisation of children’scoping strategies.MICHAEL AMENDOLIA/NETWORK PHOTOGRAPHERSThe second part of the report looks at eight projectsaround the world that are working to support childrenin conflict with the law. It contains detailed case studiesof community-based responses in Honduras, Laos,the Philippines, Kenya, Ethiopia, China, Uganda, andBosnia and Herzegovina.This report was written as a contribution to the UNStudy on Violence Against Children. Its recommendationsto governments and other agencies look at the broadcontext of issues affecting children in conflict with thelaw, covering prevention, decriminalisation, diversion,the justice system, and reintegration and rehabilitation.Save the Children1 St John’s LaneLondon EC1M 4ARUKISBN 1 84187 106 0£11.95Tel +44 (0)20 7012 6400www.savethechildren.org.uk

The Right Not toLose HopeChildren in conflict with the law – a policyanalysis and examples of good practiceFlorence Martin and John Parry-WilliamsA contribution to the UN Study on Violence against Childrenfrom The International Save the Children Alliance

The International Save the Children Alliance is the world’s leadingindependent children’s rights organisation, with members in 27 countriesand operational programmes in more than 100.We fight for children’s rightsand deliver lasting improvements to children’s lives worldwide.VisionSave the Children works for a world:• that respects and values each child• that listens to children and learns• where all children have hope and opportunity.MissionSave the Children fights for children’s rights.We deliver immediate and lasting improvements to children’s lives worldwide.Produced on behalf of theInternational Save the Children Alliance bySave the Children UK1 St John’s LaneLondon EC1M 4ARUKFirst published 2005© The Save the Children Fund 2005Registered Company No. 178159ISBN 1 84187 106 0All rights reserved. No production, copy or transmission of this publication maybe made without written permission from the publisher, and a fee may be payable.The names of all the children in this report have been changed.The title of this report comes from a child in conflict with the law in Davao, thePhilippines, who said, “It is my right not to lose hope.”Typeset by Grasshopper Design CompanyPrinted by Page Bros (Norwich) Ltd, UK

Jonatan Josue Arita Isaula(1983–2005)Jonatan had been working with the reintegration programmefor ex-gang members in San Pedro Sula, Honduras, since 2003.He was not only a young working person who wanted to starta new life, but also a responsible father who had decided toleave the gang he had been involved with, after the birth of hisson. When he joined the rehabilitation programme, Jonatandemonstrated great responsibility and developed strongworking relationships with others in the group. He belongedto Generation X, an organisation started by ex-gang membersin 2002. On 2 April 2005, when leaving the metal workshopwhere he worked and heading for his home, Jonatan was shotseven times, including a shot to the head, and died. 1This report is dedicated to the memory of Jonatan and to the otherchildren and young people of San Pedro Sula who find the couragedaily to try to rebuild their lives in the face of violence, povertyand exclusion.1For Jonatan’s full story see p.112.

ContentsAcknowledgementsAbbreviationsviiviiiCase study 1: Boboy’s story (the Philippines) 1Introduction 3Part I:Violence in the lives of childrenin conflict with the law1 Challenging the myths 9Facts about children and offending 9Failure of children’s care and protection systems 12Criminalising children’s coping strategies 17Case study 2: Lufta’s story (Bangladesh) 292 Children’s experiences in the justice system 30First contact: violence and law enforcement 30In the system: violence and detention 33Case study 3: Leo’s story (Mozambique) 37Part II: Community-based responses3 Ensuring justice for children 41Case study 4: Manuel’s story (the Philippines) 46v

● THE RIGHT NOT TO LOSE HOPE4 Good practice examples of community-basedresponses 501. Honduras.A community-based model for the prevention of violence bysupporting gang members’ reintegration and rehabilitation in San Pedro Sula 502. Laos. Community mediation: diversion of children in conflict with the lawaway from judicial proceedings 593.The Philippines. Urban community-based diversion model: the Children’sJustice Committee in the Barangays 664. Kenya. Police action to divert children in need of care and protection fromcourt and detention 745. Ethiopia. Diversion by police of children in conflict with the law tocommunity-based correction programme centres 796. China.The Appropriate Adult scheme: supporting diversion and reintegrationin an urban community 857. Uganda.The Fit Persons scheme: the involvement of volunteers to supportalternatives to incarceration 918. Bosnia and Herzegovina. Diversion through the courts: community-levelsupervision at the Chuka Rehabilitative Centre 97Part III: Recommendations 105Bibliography 108Case study 5: Jonatan’s story (Honduras) 112vi

AcknowledgementsWe are very grateful to all Save the Children colleaguesworking in the programmes from which the casestudies and models in this report have been taken,who have generously shared with us their extensiveknowledge, experiences and learning.In particular, we would like to thank:Alemtsehay Mulat, Joyce Mwangi, Robyn Braverman,Tomas Andino, Jenny Vaughan, U.M. Habiba Nessa,Kolakot Venvankham, Barbara Keller Shuey, LynneBenson, Rowena Cordero, Eva Maria Cayanan, JaimeEnriquez, Richard Talagwa, P.T. Kakama, DianeSwales, Branka Ivanovic, Shon Campbell, AleksandraRadic, Shirley Johnson, Jiang Ming, Andy West,Ruslan Ziganshin, Laura Brownlees, Clare Fox, NataliaStreuli, Bill Bell, Ravi Wickremasinghe and all themembers of the International Save the ChildrenAlliance Reference Group on Children in Conflictwith the Law.vii

AbbreviationsANPPCAN-KenyaASBOBCPCBiHCBCPCBOCICLCJCCPUCSWFREELAVAFSCEJDLJHA-JAJJPOMCTPAOVMUAfrican Network for Prevention and Protection againstChild Abuse and NeglectAnti-Social Behaviour OrderBarangay Council for the Protection of ChildrenBosnia and HerzegovinaCommunity-based correction programmeCommunity-based organisationChildren in conflict with the lawChildren’s Justice CommitteeChild Protection UnitCentre for Social WorkFree Rehabilitation, Economic, Education and Legal AssistanceVolunteers Association, Inc.Forum on Street Children – EthiopiaJuveniles deprived of their libertyJovenes Hondurenos Adelante – Juntos Avancemos(Forward Honduran Youth – United We Advance)Juvenile justice programmeOrganisation Mondiale Contre la TorturePublic Attorney’s OfficeVillage Mediation Unitviii

Case study 1: Boboy’s story (the Philippines)“Criminality runs in the family.” Boboy was often subjectedto this unfair remark from neighbours and even frompolice authorities. At 14, he had to constantly watch hisback wherever he went after two of his teenage brotherswere killed in alleged drug- or gang-related incidents.Early exposure to a harsh lifeBoboy came from a large family of eight siblings, theeldest was 23 years old and the youngest was five.Boboy’s parents married at an early age and raisedtheir children on an unstable income from their workat the public market. When Boboy’s youngest brotherwas a year old, Boboy’s father left his wife, Rita, foranother woman and Rita became the breadwinner ofthe family. She learned to carry heavy loads at themarket to provide her children with three squaremeals a day.Often tagging along with playmates, Boboy was alreadyhooked on arcade games at the age of seven and wasfrequently absent from school. He was then enrolledin a public elementary school as a first grader. He wasre-enrolled the following year but he dropped outagain, preferring daily life with his friends at themarket place.At an early age, Boboy frequented the BangkerohanPublic Market, tagging along with his mother orwith friends. He worked as a market vendor and aconductor for public utility jeepneys. As an adolescent,he spent most of his time with his friends. He learnedto smoke and was exposed to other risk-takingbehaviours.Blood brothersThe year 2001 was a very unhappy time for Ritaand her family. Her two young sons, Richard andChristopher, were killed by unidentified assailants,believed to be members of a vigilante group inDavao City. Richard was stabbed to death in July,Christopher in October.To keep the other children away from danger,Rita arranged for the custody of her three youngerchildren with an alternative shelter for childrenand youth. “My children are now in good handsand continuing their respective classes in school.We will just visit them occasionally,” Rita said.Rumour was rife within their community thatBoboy was in danger of becoming the next target.Both brothers had reportedly been killed becauseof their alleged involvement in petty crimes andillegal drugs.Boboy was provided with temporary shelter atthe Kabataan Centre. Apart from providing legalsupport and individual and family therapy sessions,the Kabataan Centre also explored alternative homearrangements for Boboy to try to prevent himmeeting a violent death, as the fear of summaryexecution intensified.Boboy, however, opted to go back to his owncommunity with his family, under the custody of hismother. He resumed his usual routine – occasionallyworking as a market labourer and hanging out withfriends day and night. Rita said that Boboy nowheeded her advice. Nevertheless, the fear of theunknown continued.On 12 March 2002, Boboy was arrested by the policefor allegedly snatching a woman’s necklace. After beingheld at the police station for a day, he was releasedthrough legal support from the Kabataan Centre.After a month, on 10 April, he was arrested again forillegal possession of a deadly weapon. He was againdetained in the same police station until 9 June 2002,a lengthy two months of waiting for case filing andthe court’s subsequent order of commitment.Worried about the security of her son, Boboy’smother, Rita, formally requested the San PedroPolice Station to transfer Boboy to the Regionalcontinued overleaf1

continued from previous pageRehabilitation Centre for Youth (RRCY). Boboy stayedat the RRCY until the morning of 13 June 2002.Thenext day, the RRCY formally turned Boboy over toRita’s custody.The Department of Social Welfare andDevelopment assessed that Rita was able and hadthe capacity to take care of her son.Victim and survivorBoboy was both a victim and a survivor of povertyand of the breakdown of family support. He learnedhow to make some sort of living in the public marketby becoming a young market hauler and by doingother odd jobs. As a child, he witnessed differentforms of violence in his family and his community.Worse, he witnessed the successive violent deathsof his two brothers.As a child in conflict with the law, Boboy learnedhow justice was dispensed to young people like him.Rather than threaten him, this challenged him to moveon and strengthened his capacity to deal with theharsh realities of being under constant surveillance bythe authorities. He drew strength from his mother’sown ability to cope and survive and so wanted tobe always near her. When circumstances forced himto leave his mother temporarily and seek safetyat the Kabataan Centre, he suffered separationanxiety. He returned to his family, not only to bewith his mother but also to confront his situationand live with it, hoping that there would be changesin the justice system. His personal security was indeedat stake, but his growing awareness of the plight ofchildren like him and the presence of many nongovernmentalorganisations (NGOs) that providedsupport and services gave him the courage to copeand even to take part in action for promotingchildren’s rights and ensuring children’s protection.Boboy was stabbed to death on 2 November 2002in the same brutal manner as his two elder brothers,six days before his fifteenth birthday. In 16 months,Rita lost three sons.Their deaths, and those of otherchildren and young people who find themselves inconflict with the law, attest to a justice system thatallows ‘vigilante justice’ to prevail in the many instanceswhen it fails.Their deaths reflect society’s indifferenceto the plight of many young people who becomethe victims of structural violence. Rita has vowed tocontinue to seek justice for her sons and to advocatefor a comprehensive juvenile justice system, to try toprevent more sons and daughters meeting the samefate as her Richard, Christopher and Boboy. 22Case study taken from Ancheta-Templa (2004)2

IntroductionBoboy’s life story is both unique, a reflection of hisown particular circumstances and of the personhe was, and at the same time tragically familiar toanyone who has worked with children in conflict withthe law, whatever the country or the context. Thecircumstances may not always be so extreme and theoutcomes not always so tragic, but, as this reportdemonstrates, the same patterns can be foundthroughout the world in the lives of children whoend up in conflict with the law, whether in Honduras,the Philippines, Uganda or China. More often thannot there is a background of poverty, marginalisationor exclusion; a pattern of violence or neglect in thefamily or community; a failure in the child’s careand protection support mechanisms; a lack ofopportunities and a loss of hope. Often, these factorsare compounded by the children’s sense of alienation,of powerlessness, of being on the margins of societieswhere they do not belong, where adults make the rulesand where children’s spaces and place are restrictedand defined on the basis that they are not part of theadult world.To recognise the reality of these children’s 3 lives andexperiences is not to see these children as hopelessvictims of circumstances, as simply passive recipientsof society’s ills. These children are very much actors intheir own life stories and will often have made activechoices, faced up to responsibilities, and determinedthe course of their lives and sometimes even deaths.But children are no more divorced from the contextand environment in which they live, grow up anddevelop than the adults who are supposed to care forthem, protect them and guide them.Most of the children who come into conflict with thelaw – whether they are children trying to survive, pettyoffenders or serious offenders – are children who arefacing challenges in their care and protection and intheir relationships with their families, communitiesand society. Their lives, choices and opportunitiesare affected to a great extent by the social, economicand political realities in which they live. Theseinclude communities increasingly fragmentedthrough urbanisation, chronic poverty, social andinter-personal violence, and increased pressure fromcommercialisation and materialism. Yet, somehow weexpect children to remain outside of all this and bebetter. We construct childhood as a time of innocence,of purity and lack of responsibility. When children donot live up to these expectations, our societies respondwith particular vindictiveness, as if in shock that theimage we created, the childhood we want to believe in,does not exist. Media frenzy and political opportunistscan take over and every child can be tainted with thesame brush: children are demonised for not being‘what they used to be’ and for being ‘capable of theworst things’. 4Beyond the periodic hysteria about youth offendinglie some stark facts:• The overwhelming majority of children in conflictwith the law – over 90 per cent of them – are pettyoffenders, who mainly commit offences againstproperty.• Four out of five children who commit an offenceonly commit one in their lifetime. This is notonly true of the Philippines, of Laos, of Kenya orEthiopia; this is also true of industrialised countriesand even countries facing major levels of socialand community violence.• The majority of children who end up in thecriminal justice system are from particularlydeprived communities and families, often fromdiscriminated minorities.• In some countries, the great majority of childrencoming into conflict with the law are childrenwho are criminalised for simply trying to survive.Yet we treat that overwhelming majority of childrenas if they were all committing serious and violentoffences. We portray them as such and we respond to3

● THE RIGHT NOT TO LOSE HOPEtheir offending by putting them through a criminaljustice system that is devised to deal with those whoactually do pose a real and serious risk to publicsafety. To make things worse, by responding to theiroffending in this way, we expose them to situationsand environments that are inherently violent, andthat take them away from the social and familialenvironment that is supposed to ‘socialise’ them.We incarcerate them and remove their opportunityto learn to be respectful and respected members ofsocieties and communities. We expect them to learnresponsibility by exposing them to the totally artificialenvironment of detention, where choices are made forthem, imposed rules define their everyday living anddecide their every move, and where all the challengesthey faced in the real world are temporarily removedbut not dealt with. And then, when the sentence isover, we plunge them back into the same context andenvironment that led to their offending in the firstplace, hoping that they have learnt their ‘lessons’.This report will show that violence is a recurringtheme in the lives of these children and not onlyafter they come into conflict with the law. Violenceis a major root cause of children coming intoconflict with the law in the first place. It is alsoa major consequence of inappropriate criminaljustice responses to children’s coping strategies andbehaviours. Finally, it is often a routine factor in theway children are treated once they enter the criminaljustice system. There are already many reportstestifying to the brutality of treatment these childrenface at the hands of law enforcement agents, prisonauthorities, and within their communities at thehands of their peers, self-appointed vigilantes andmembers of drug and crime gangs who use thesechildren for their trade. Yet, it is less often shownhow inappropriate responses that criminalise childrenunnecessarily and do not address the challenges thatled them to come into conflict with the law in the firstplace can lead to further vulnerability for children andincreased exposure to violence and marginalisation.Part I of this report explores the way violence isintricately linked to the lives and experiences ofthese children and combines with other key factorssuch as poverty, marginalisation and inappropriateresponses to limit the opportunities for children tomake different and better choices for their lives.Part II of the report responds to the call of the UnitedNations (UN) Study on Violence against Children togo beyond identifying the problems and focuses onwhat can be done. We share eight examples of goodpractice that have been developed with partners andchildren themselves to provide a child-centred justicesystem that responds to the issues faced by children inconflict with the law in an effective and appropriateway: that recognises the diversity of their experiencesand the root causes of their offending, and aims toavoid their further exposure to violence, stigmatisationand exclusion.International law has long recognised that the formalcriminal justice system should only deal with thesmall minority of children who have committedserious and violent crimes and who pose a real securityrisk to others. In addition, it has stated clearly andfirmly that detention should always be a measure oflast resort. Yet children continue to be criminalisedinappropriately and exposed to a system that is oftenviolent and frequently arbitrary. Children all over theworld continue to be detained as a matter of courseand often in appalling conditions where they are atfurther risk of being abused. While international lawcontinues to promote alternatives to the formal justicesystem, at a national level, reliance on this system andon detention remains overwhelming. New and biggerprisons are being built all the time, even in countrieswhere youth offending rates are actually decreasing.Alternatives to criminalisation and detention are rareand when they do exist, they tend to be isolated goodpractices and under-resourced, even where they haveshown a demonstrable impact on the lives of childrenand on their offending.Many would consider a ‘child-friendly’ justice systemto be one where police officers do not torture, beat orsexually abuse children nor extort money, arrest themwith no cause and detain them for indeterminateperiods of time. Compared with the reality that mostchildren in conflict with the law face every day, sucha system would already be a major achievement. Buteven a child-friendly and child-respectful justice4

INTRODUCTION●system is not necessarily a system that respectschildren’s rights and provides them with real justice.The fact is that most criminal justice systems arebased on concepts of justice that are punitive, andfocused on addressing the immediate result ofoffending. They place children in constant ‘doublejeopardy’, where they are criminalised and punishedfor attempting to survive, for re-enacting the violentpower relations that they are brought up withinand for tiptoeing on the margins of societies thatin turn exclude them and demonise them for being‘anti-social’.To demand justice for children is not just to requirethat they are not abused at the hands of those who aremeant to enforce the law. It is to require that societyrecognises and addresses the reality of children’s livesand the root causes of their offending and seeks toput in place real, long-term solutions that childrenthemselves have identified and can recognise as theirown. These solutions must be based on a consciousshift by these societies and communities to see allchildren as part of them, as a reflection of them andas key stakeholders in their own future. The examplesof good practice in this report do not pretend to besolutions to every problem nor applicable in everycontext, but they demonstrate that this shift is possibleand that when it is supported and sustained, it canprovide a real reason for these children to continueto hope.Notes3A child is defined under Article 1 of the UN Convention on theRights of the Child as “every human being below the age of 18”.4“Phil Cohen (1997) has argued that young people have tocarry a peculiar burden of representation. Their condition isincreasingly seen as being symptomatic of the health of thenation, or the future of the race, the welfare of the family, or thestate of civilization as we know it.” (Muncie, 2004, pp 10–11)5

Part IViolence in the livesof children in conflictwith the law

1 Challenging the myths“Probably no other area of domestic policy has been Examples from Chapter 4 in this report illustrateabandoned more thoroughly to misinformation, this starkly. In six jails in Cebu, in the Philippines,hyperbole, and pandering to public prejudices.74.4 per cent of children in jail between 1999 andThe results, frequently, have been ill-thought2001 were being detained pending trial. In Ethiopia,strategies that actually increase crime, damagedata compiled by the Addis Police Commissionyoung people, and waste taxpayers’ dollars.” 5and Forum on Street Children Ethiopia for theyears 1998–2001 reported that 98 per cent of childoffenders reported to all police stations in Addis AbabaFacts about children and offending were detained. 11 In Uganda, at the capital’s main adultprison, 60 children were remanded there during aArticles 37 and 40 of the UN Convention on the given month in 2004, while the number of convictedRights of the Child (UNCRC) and international children held there over the previous six months wasstandards on the Administration of Juvenile Justice only six, making the proportion of remanded childrenrequire states to establish a child-centred, specialised at least 90 per cent.justice system whose overarching aim is children’ssocial reintegration, and which should guarantee In addition to those being detained pending trial, thethat their rights are respected. 6 In recognition of the majority of children who are incarcerated have notparticular nature of youth offending and the overall committed a violent crime and do not pose a seriousgoal of “promoting the child’s reintegration and the security risk to their communities. In the USA, onlychild’s assuming a constructive role in society”, 725 per cent of incarcerated youth have been foundinternational law also emphasises the need to divert guilty of a violent crime, leaving 75 per cent inchildren away from judicial proceedings whenever detention who should not be there. 12 In the UK,possible and to “redirect [them] to community“the number of children in prison has more thansupport services”. 8 The formal justice system should doubled since 1993 despite a decline in the numberonly deal with the small minority of children who of children convicted or cautioned for offences. Thehave committed very serious crimes and represent a UK now locks up more children than anyone else inthreat to their society, and the detention of children Europe.” 13 In Kenya, as shown in Chapter 4, researchshould always be a measure of last resort.found that 80–85 per cent of children in policecustody or correctional facilities were children inThe reality for children all over the world, however, need of care and protection who had actuallyis quite different.committed no criminal offence.A majority of children in conflict with theEstablishing the facts about children in conflict withlaw end up in the formal criminal justicethe law is no easy matter, however. It is notoriouslysystemdifficult to obtain official statistics on childrenwho come into conflict with the law. The lack ofIt is estimated that there are over one million childrenappropriate data collection systems, particularlyworldwide in detention. 9 The detention of childrenproviding disaggregated data by age, is compoundedwho have been accused of a crime but are awaitingby the failure to use standardised concepts intrial (remand) continues to be the norm in a majorityrelation to the definition of a child. Despite theof countries and in some cases this accounts for overUN Convention on the Rights of the Child’s almost90 per cent of children being held in detention. 109

● THE RIGHT NOT TO LOSE HOPEuniversal ratification and its definition of children asbeing under 18 years of age, member states continueto use widely varying terms in relation to children inconflict with the law. In UK statistics for example,children are classified as those aged between 10 and13 years, juveniles are children aged between 10 and17 years, young persons are between the ages of14 and 17 years, young adults are aged between 18and 20, and adults are 21 years old and above. 14The lack of proper and standardised data collectionsystems also ensures that data on youth crime remainhighly politicised and are easily manipulated by thosewho want to be seen as ‘tough on crime’, but alsothat public policy on crime remains too oftendivorced from the actual crime situation. In addition,different definitions from country to country as towhat constitutes a ‘serious crime’ or a ‘petty crime’mean that it is often difficult to compare patternsof offending by children. 15The vast majority of offences by childrenare petty and non-violent offencesWhat is clear from the available data and from thework of Save the Children 16 and other organisationsworking in this field is that over 90 per cent ofchildren who come into conflict with the lawhave committed petty offences. Despite popularmisconceptions about children who break the law andregular ‘moral panics’ about a world where childrenare not as they ‘used to be’, patterns of offending bychildren remain strikingly similar all over the world.The percentage of children who commit seriousviolent offences remains small even when it is at itshighest, in countries with high levels of social violence,acute breakdown of law and order and street violence.Despite a steep increase in youth offending in theUSA in the 1980s and early 1990s, only nine per centof juveniles who were arrested had committed aviolent offence in 1992. 17 Five years later, in 1997,arrests of juveniles for violent crimes in the USAaccounted for only 4.3 per cent of all juvenile arrests. 18Property crimes, however, accounted for a majorportion of all juvenile crimes, with a range of statusandsubstance abuse-related offences accounting forthe rest. 19 In Honduras, despite public misconceptions,crimes committed by children constitute only a verysmall percentage of all crimes. Further, although thehomicide rate is much higher there than the worldaverage (40.7 per 100,000 compared to 5 per100,000), the majority of crimes committed bychildren continue to be property crimes. 20 Research inCentral and Eastern Europe and the Commonwealthof Independent States has confirmed that, aselsewhere, “property crimes still account for morethan two-thirds of juvenile crimes” despite steepincreases in crime rates overall (including violentcrimes) in transition countries, particularly linkedto an increase in drug-related crime. 21Theft and other property crimes top the list ofcrimes committed by children, often followed bysubstance abuse and so-called ‘status offences’. InThe Philippines, for example, a study in Davao Cityfound that the top three offences totalling 82 percent of all offences were theft (35 per cent), substanceabuse (28 per cent) and curfew violations (19 percent), while violence against the person amounted toonly 7.1 per cent of crimes committed by children.According to police records in Cebu, another majorcity in the Philippines, nearly three-quarters ofchildren arrested were alleged to have committedoffences against property (71 per cent). 22 In Bosniaand Herzegovina, it is estimated that 92 per cent ofcrimes committed by children were property offences.In Nairobi Central Police Station, 70 per cent ofarrests were for vagrancy. 23Children as ‘one-off’ offendersThe great majority of children who come intoconflict with the law are first-time offenders and rarelygo on to become career criminals. In Laos and thePhilippines, for example, it was found that over 90 percent of children in detention were there for a firstoffence. Conversely, in the UK it was found that a“small minority of the most prolific offenders wereresponsible for the vast majority of offences. Just twoper cent of the whole sample accounted for 82 percent of all offences measured.” 24The reality is that a majority of children will breakthe law at least once before they reach 18 years of age,although the nature of their offending is usually sotrivial as rarely to warrant intervention by the justicesystem. There is a well-recognised pattern of youth10

1 CHALLENGING THE MYTHS ●offending in more affluent societies, for example,where offending is less often linked to survival, witha peak at around the age of 18 for boys and 15 forgirls. This tends to be followed by a sudden drop inoffending, understood to reflect the reality of childand teenage development with a period of testing‘boundaries’ which ends naturally when youngpeople find work, begin a family and take onresponsibilities.“Studies have found that, in industrialised societies,committing offences is most common among olderadolescents and young adults. Usually, the acts arenot serious, and most first-time young offenders donot end up pursuing a criminal career. For example,government statistics for 1996 in the Netherlandsshowed that rates of criminal offence peaked at ages18–19, and a 1993 study in Scotland found the peakage for committing crimes was 18. A 1993 study inthe UK based on self-reported offending revealedrates which were much higher among the 18–25 agegroup than among 14–17-year-olds. Serious andmore deliberate offending tends to appear duringearly adulthood, but, like frequency of offending, itusually decreases among people above age 25.” 25The criminalisation of children’s behaviourGrowing up is a period when children are learning totest boundaries and develop their own sense of rightand wrong. Adolescents will adopt ‘risky behaviour’and they will do so at a time when their lives andbehaviour are particularly regulated by their families,schools and society. Crimes by minors account onaverage for between 5 and 25 per cent of all crime,and this is despite the fact that children and youngpeople are probably the most policed and heavilyscrutinised social group in any society. Children’sbehaviour in social spaces is particularly controlledthrough the existence of a range of ‘status offences’ –offences that are only a crime when committedby children, such as truancy, running away fromhome or being beyond parental control. In addition,children’s behaviour that is deemed ‘anti-social’ hasincreasingly been criminalised through the use ofcurfews and other anti-social behaviour measuressuch as Anti-Social Behaviour Orders (ASBOs) 26in the UK.At the same time, children growing up in countriesand families where chronic poverty or violence haveled them to adopt survival strategies includingmigration onto the street, street work, begging,scavenging, petty thieving or prostitution, find thattheir very attempts at survival are criminalised andbring them inevitably into conflict with the law.For these children, adopting a ‘risky behaviour’is not a choice but a part of daily life. Nevertheless,law and order strategies that criminalise childrenfor being ‘out of place’ mean that children whoare living or working on the street, includinghomeless children and children facing care issues,are the most vulnerable groups of children interms of coming into conflict with the law andexposure to violence. They represent an overwhelmingpercentage of children found in the criminaljustice system.Criminalisation and genderCrime all over the world is overwhelmingly a malephenomenon, with about 80–95 per cent of allcrimes being committed by males, including crimescommitted by children. Yet these figures do not givethe full picture of girls and boys coming into conflictwith the law and their differing experiences once theydo so. While it is acknowledged that girls commitfar fewer offences, it is also true that gender roles,the social control of girls and their restricted accessto public life in many contexts, as well as the differentcoping strategies that girls are forced to adopt, resultin some cases in less criminalisation and in othercases in more. For example, in a study of streetchildren in Tajikistan, it was found that most streetsurvival strategies were simply not available to girls,who would instead turn mainly to prostitutionto survive. 27In many societies where families face economicchallenges, the marriage of girls, including younggirls, is also used as a way for the family to increaseits income or at least reduce the financial burden.Alternatively, girls may simply be forced to marryat a very young age as the only survival strategyopen to them. The story of Okello and his sistersin Uganda (overleaf) is a striking illustrationof this.11

● THE RIGHT NOT TO LOSE HOPE“Both Okello’s parents died in Gulu district leavingbehind his two sisters and himself. Unfortunately therewas only one surviving relative who was their uncle.He mistreated them and denied them a share in thedeceased parents’ property which they had a right to.As a result, the girls were forced into early marriagefor survival while Okello became a street child andcommitted a number of offences of theft. For onesuch offence he was arrested and detained by thepolice.” 28 (Uganda)While in some cases girls experience preferentialtreatment when they come into conflict with the lawand judicial personnel may show more willingness todivert them away from the judicial system, in othercases expectations about what is deemed ‘appropriategirls’ behaviour’ mean that they are more likely to becriminalised. In particular, status offences are oftenused against girls to control their behaviour. In theUSA, for example, Amnesty International noted that“the pattern of female offending is quite different tomales. A very large proportion of their arrests are forso called ‘status offences’ (such as running away fromhome), offences which only children can commit,rather than general criminal offences.” 29 In addition,girls who have turned to prostitution as a survivalstrategy or have been prostituted and are victims oftrafficking continue to be prosecuted in many cases,instead of the adults who are exploiting them. Thecriminal justice system is even used in a number ofcountries for the so-called ‘safe custody’ of girls, apractice that in effect criminalises them and deprivesthem of their liberty, often with no recourse to dueprocess of any kind, even though they are in manycases the victims of crimes, including crimes involvingsexual violence. 30 The situation of these girls remainsone of the most tragic and least reported examples ofhow children end up in conflict with the law.Failure of children’s care andprotection systemsThe experience of violence for children in conflictwith the law rarely begins with their first contact withthe law. It is often a direct and major cause of theircoming into conflict with the law in the first place.It is also a direct consequence of failed care andprotection responses by states and communities forchildren ‘at risk’ if their traditional familial protectiveenvironments have broken down. But violence canalso be a very real consequence of criminal justicepolicies that inappropriately criminalise children’scoping strategies and behaviour, and reduce further theoptions that are available to them, as well as drivingthem towards more ‘risky behaviour’. It is crucial tounderstand the complex and intricate relationshipbetween violence and criminalisation in order torespond appropriately to what is happening in thelives of boys and girls who come into conflict withthe law. If we do not, we will be left tinkering on theedges of a system that inherently fails to address thereal issues faced by these children, their families andtheir communities. That system will instead continueto compound the problems faced by these childrenbefore adding its own measure of violence intotheir lives.Abuse, neglect and separation“I do not want to go back home because my fatherdrinks alcohol and when he beats me, I roll aroundlike a football.” 31One of the most common factors that brings childreninto conflict with the law is the breakdown of theirfamilial and protective environment. Whether this isthe result of violence within the family, the death of aparent, divorce, separation in an emergency situationor migration as a result of chronic poverty, its impactis that it exposes the child to a much higher risk ofboth violence and coming into conflict with the law,the two being inextricably linked. The child’s attemptsto fend for him or herself and often to care for othersiblings by living or working on the street or intemporary and unstable environments, the lack12

● THE RIGHT NOT TO LOSE HOPEin any of the criminal justice responses to youthoffending. In a study in the UK, for example, itwas found that “91 per cent of all ten-17-year-oldswho had committed the most serious offences hadexperienced abuse or loss in their earlier life.” 40Despite increasing concerns about violent behavioursby children, including sexual violence, most criminaljustice responses continue to fail to respond to thelinks between violence experienced and violencecommitted by children. 41Although family abuse frequently plays a major partin the life history of children who commit offences,this is not to imply that all children who have beenabused will go on to commit an offence. It does mean,however, that unless abuse in the lives of these boysand girls is prevented and addressed appropriately,children will continue to be driven towards responsesand behaviours that will increase their likelihood ofbeing further abused and, in many cases, will bringthem into conflict with the law.In addition to violence by parents, violence, abuseand outright rejection at the hands of other carers,particularly in the aftermath of divorce or separationwhen a child is cared for by a step-parent or within areconstructed family, are also common factors in thelives of many children who end up in conflict withthe law.Amir is 13 years old. His stepmother drove him outwhen he was eight years old:“My father... at the beginning... at Kulyab ... atMoscowsky ... was a well-known man. He and mymother got divorced in the course of the war. Sometime later my father came and took me out of herhands, then there was a kind of quarrel… He takesme away… A bit later once my mother comes to myfather’s place, she found my father has already beenmarried… Then at the place she gets in ‘scandal’ withhis new wife.… Later, as I had become a pupil of thethird year, I asked my ‘moma’ [one replacing his directmother] to take me back to my mother. She waskeeping silent. I had again urged her: ‘please, take meto mother!’ Then she told me that my mother haddied three days ago. Then my father […] left mewith my moma [because he left for Russia]. In turnshe beat me up and threw me out. She said: ‘You arenot my child and you are from another person’. So shethrew me out. Then I had to stay, with all these boys,at this Sahovat [market].”Tajikistan 42Violence experienced by children in the familyis not only that which is directed towards them.Domestic violence, where children witness the abuseof one of their parents at the hands of the other,also has a pervasive impact on children’s sense ofsecurity. It often results in a feeling of powerlessnessand unpredictability as well as a sense of lawlessnessand unfairness in the realm of the home where theboundaries of what constitutes ‘acceptable behaviour’simply do not apply.Family relationships are clearly crucial to children, notonly in terms of the emotional, social and economicstability that they can bring, but also in terms of theparental support and guidance that children needand the process of socialisation that families provide.In discussions with boys and girls who are in conflictwith the law, parental love, care and guidance arealways mentioned by the children as important factorsfor preventing children ending up in trouble. 43Parental neglect – including not having time to bewith their children, to talk, to take an interest in theirlives, either from wilful negligence or due to thepressures of making a living – is a recurring issue forchildren of all backgrounds. Yet, support for parents,including in parenting skills and good parenting, israrely, if ever, prioritised or available.Sixteen-year-old Joy, who is in jail for substance abuse,writes:“I have always been and still am a hard-headed child.Do you know why children are hard-headed? Becausesome parents lack love and caring. How come childrendo not obey their parents? Because they see what theirparents do. Why do children come to this? Why arethey here inside the jail?” 44Children who are unable to reach out to extendedadult support through their broader family network14

1 CHALLENGING THE MYTHS ●or other key adults in their lives, such as teachers orfamily friends, will often find themselves particularlyisolated and likely to look for alternative andsometimes more risky support networks, such asgangs. The importance of an extensive protectionnetwork for a child is particularly obvious whenviolence or other forms of crisis affect the boy or girl’srelationship with his or her parents. Unlike adultswho are able to seek support from other adults orservices, children are rarely encouraged to go outsidethe family or school for support. The resulting senseof powerlessness and of having nowhere to turn toare often major factors in the risky strategies adoptedby children in conflict with the law.“Q: Is there anyone who could help you?A: (pause)Q: Did anyone help you in your life?A: In my life? No.Q: No one helped you?A: NoQ: Do you have any friend so that you could talk tohim in an open manner, freely? If you feel upset andyou can come and talk to him?A: No, there is no such a person.Q: There is no one?A: (pause)”(Kolya, aged 14) 45Gangs and peer groups may become the crucialinfluence in such a child’s life, with both positiveand negative implications. On the positive side,gangs and peer groups may provide an importantsocialising and protective framework for a child thatmay otherwise not be present or adequate. On thenegative side, the child may be exposed to high levelsof peer “violence (to maintain discipline and assertauthority within the hierarchy of the gang as well astaking the form of inter-gang violence), introductionto substance abuse and potential for increasedcriminal behaviour”. 46Thus one of the consequences of the breakdown offamily protection for a child may be that they aredriven towards coping strategies that will in turnexpose them to further violence and the increasingrisk of coming into conflict with the law.The revolving doors of care and justiceresponses to children ‘at risk’In addition to having the primary care responsibilityfor children, the family is an important status-givinginstitution. Children who find themselves excludedfrom a family may also find themselves without socialstatus or saddled with a negative one, with the labelof ‘orphan’ or ‘street child’, for example. They mayfind themselves ‘out of place’, at the margins of asocial environment where a child is either meant tobe in a family or in a ‘home’, an institution for theirprotection. As a result of that loss of parental care,the child becomes an object of protection for thestate, which is meant to intervene when the primarycarers – the family – are unable or unwilling tocare appropriately for their children. In reality,the provision of social care and child protectionmechanisms are often completely absent or relyentirely on already overcrowded institutions. As aresult, the criminal justice system, particularly thepolice, becomes the first and often only agencyto respond to the child’s situation. Children arecriminalised through the failure of adequateresponses to deal with their care and protectionneeds and often find themselves sent back and forthbetween both care and justice systems.Kenya provides a stark example of what happenswhen the social welfare system becomes confusedwith the criminal justice system. With 80–85 percent of children who face serious care issues endingup on remand, the police and courts act on whatthey believe is in the children’s best interests byremoving them from the streets and placing themin the criminal detention system in the absenceof alternatives in the care system. Kenya is by nomeans an exception, as the examples in Chapter 4demonstrate. 47 Children who have committedno offence, actual or perceived, but who for onereason or another are without parental care, areroutinely detained in the justice system for their‘own protection’ until some other form of care canbe found. In a number of countries, parents are evenable to ask the police and prisons to detain childrenthey say they cannot manage, as is the case in Laosand Bangladesh.15

● THE RIGHT NOT TO LOSE HOPEEmon is a boy of 14 years old. His father brought himbefore the Tongi Juvenile Court because of his ‘unruly’behaviour. According to his statement, he has manyfriends with whom he used to spend more time thanhis father desired. Sometimes he used to return homea bit late at night. His father’s advice was ignoredwhich infuriated him. And this led his father to bringEmon to the correctional institute for ‘rectification’.Emon has been given a detention order for six months.Now he knows how to make tattoos. He also knowshow to make a dagger and other sharp weapons. Hesays that when he will be released, he will continuedemonstrating his feats because he wants his fatherto know how well he has been ‘corrected’ in thecorrectional institute. 48Under the laws in Honduras, children are deemedto be in a situation of danger “if they exhibit seriousbehavioural problems or difficulties with socialintegration, which include truancy from school,running away, belonging to a gang, and persistentdisobedience to their family”. 49 In these cases,children’s judges can order the placement of thechild in so-called temporary ‘welfare institutions’,which in reality often mean many months living inpoor conditions in overcrowded institutions. InBangladesh, under ‘safe custody’ laws, magistrates canpass an order for the detention of boys and girls in‘safe custody’ (in jail or a vagrant home) in cases wherethey have been the victims of rape or sexual assaults,in cases where they have been rescued from brothels orfrom traffickers and, in the case of girls and women,where they have married someone from anotherreligion or they have married without the consent oftheir guardians. 50 The misuse of the criminal justicesystem for the ‘protection’ of children is particularlysevere in relation to girls in a number of countries.From the continuous criminalisation of girls who aresexually exploited and trafficked to the use of criminaldetention for the ‘protection’ of girls who have beensexually abused, this inappropriate use of the systeminvariably leads to further exposure to violence and is aflagrant violation of their rights. They representparticularly appalling examples of what happens whenthe criminal justice system is used to address care andprotection issues. 51Inappropriate care responses do not only affectchildren when they are deemed capable of committingoffences but also when they are below the minimumage of criminal responsibility and commit acts thatwould be offences if they were above that age. In manycases, these children are referred to the same careinstitutions and often have even fewer opportunitiesfor accessing due process and ensuring that decisionsabout them are based on what is in their best interest.As a result, it is crucial to ensure not only that aproper minimum age of criminal responsibility is setbut that the care responses to children who ‘offend’below that age provide protection and care responsesthat are community- and family-based.Even in countries where the care system is functioningappropriately, there is often a revolving door betweenthe care and justice systems. The care system’s overrelianceon institutionalisation and the lack of supportfor family-based care alternatives have a particularlynegative impact on children. The inappropriateplacement of children in orphanages and otherresidential institutions puts them in a similar situationto the one they would face in detention, includingthe very real risk of violence while in care. Alienatedfrom a normal social environment and from both thenegative factors but also the support networks thatare available through their relatives and communities,children who come out of care are particularly at risk.Few if any of the challenges they faced because oftheir lack of protective networks, including throughtheir extended family, peers, and neighbours, aregoing to be resolved through their institutionalisation.Instead, these children have been removed from anormal socialising environment and when they leavecare they will be plunged back into a world verydifferent from the rules and regulations of a confinedinstitution. Without appropriate support networksand coping mechanisms, many of these childrenwill end up leaving care only to be picked up bythe police. 52In many countries, the care institutions themselves arehardly different from the prison system and childrenoften experience them as such. As a result, childrenwill often choose, whenever they can, to remain on16

1 CHALLENGING THE MYTHS ●the streets and will view the authorities’ attemptsat ‘protecting them’ as no more than an attempt torestrict their lives and penalise them for the situationin which they find themselves. This in turn mayeven lead them to adopt even more risky survivalstrategies, including avoiding all contact with theauthorities and with representatives of the authorities(including in the education and health systems),in an attempt to escape the reach of both care andcriminal systems.“The first thing is that we don’t want to be in jail orthe vagrant home. We have every right to work andlive on the streets because we don’t have any otheroption at the moment. Police should not pick up streetchildren without any specific charge against them.”Street children in Bangladesh 53Failures in the care and protection systems, whetherfamilial or state-based, are a major feature in the livesof children in conflict with the law and yet are rarelyacknowledged in the formal responses to children’soffending. A study of children in detention in the UKby the Government’s Social Exclusion Unit found thatover 50 per cent of these children had been in care orinvolved with social services; two out of five girls andone out of four boys reported suffering violence in thehome; one in three girls and one in 20 boys reportedthat they had been sexually abused; and over half ofthe girls and two-thirds of the boys had had alcoholproblems before entering prison. 54 Instead of ‘treating’children as a series of isolated problems (child withfamily problem, child abused, child in care, child withanti-social behaviour issues, child in conflict with thelaw), children should be recognised as individuals,who are often facing multiple issues at the same timeand are having to make choices according to thelimited options they feel are available to them. Theyshould be supported through a continuum of careand protection responses that recognise the range ofchallenges faced by that particular boy or girl, andprovided with the tools and options to address themin a safe and empowering environment. Access tocommunity-based support mechanisms should beprioritised at the earliest stages and not only whena child has already come into conflict with thelaw or has already been convicted of an offence andcommunity reintegration suddenly becomes an issue.There is a terrible irony that a concept of protectionthat sees children’s safety as being threatened on thestreets and best supported by a move into a closedenvironment, a home or an institution, has led tochildren being moved into what are often equallyunsafe environments, such as a return to violenthomes, police custody or orphanages. The reality,however, is that the aim of such interventions is lessthe protection of the child and more the application ofconcepts of public order, with streets free of vagrantchildren sleeping or begging and generally disturbingthe appearance of ‘social order’. As will be discussedfurther in the next section, while removing the childfrom the public space may deal with the immediatepublic order issue, it does not in any way address thecauses of that child’s homelessness or his or her needfor care and protection.Criminalising children’s copingstrategies“Because it was difficult to survive, we had no breadto eat… Then we came here.”“Because we used to live in the village, there was noplace to work, we had no shoes to wear, we couldn’tbuy the needed school uniform, that’s why we werenot able to go to school…”“We had hard times at the village. We had not beenhaving any food to eat despite all my tries to get it.I had not been having any good clothes to put onand the other boys laughed at me. So I had to runaway from there to the city for this.”Street children in Tajikistan who wereasked why they left home 55Survival strategiesThe break-up of familial protective structures asa result of violence, separation or simply out ofeconomic necessity all lead to children findingthemselves ‘out of place’ in the eyes of society.17

● THE RIGHT NOT TO LOSE HOPEChildren facing chronic poverty and violence intheir families and communities are more likely toleave their homes either permanently – as theymigrate to bigger cities in search of work, foodand opportunities – or temporarily, as they take onsmall-scale employment, usually on the streets, oradopt survival strategies which include begging,scavenging or petty thieving.These children find themselves in ‘double jeopardy’,as their very survival and coping strategies arecriminalised by their societies. Begging, vagrancyand street work are still criminalised under thelaws of many countries as a result of a public orderstrategy that wants to see streets cleaner and saferfor the majority of citizens and in order to instilconfidence in business. In Bangladesh, for example,vagrancy laws and criminal procedures are used to‘sweep’ the road prior to the visits of dignitaries orprior to every general strike (Hartals). Children arerounded up, often beaten and then detained for their‘safe custody’. “At times the police detain the childrenfor days without producing them to Court as theyare pressed [to pay] some sort of ‘unofficial ransom’(in most cases 200 Taka per children).” 56“One day we went to the Shishu Park (children’spark) along with others. Suddenly the police picked usup without explaining anything. When we asked themabout the reason, they beat us up. We were afraid toask again as the police had batons in their hands.” 57As children, their employment opportunities arelimited and often exploitative. They are driven towardslivelihood options that are usually illegal and theimpact is that they are asked to make impossiblechoices: to eat, sleep and survive, or not to breakthe law.In Quezon City in the Philippines, for example, thelocal ordinance “specifically declares penal certain actsand activities for street children [such as]:(a) loitering within the Quezon City streets if thechild is below 12 years old(b) selling sampaguita leis, cigarettes, newspapers,and other products or commercial items in theQuezon City streets(c)begging, sniffing rugby and other solventproducts, pickpocketing, and doing otherillegal activities.” 58In some countries, children are left with no otheralternatives than petty theft to meet their basic needs,including food and clothes. In Uganda, a study ofchildren in conflict with the law in three districtsfound that 70 per cent of children had given theneed to meet their own needs, including food, asthe main motivation for stealing. 59“I badly needed trousers and yet did not have themoney to buy them. So I got them on credit althoughI did not have anywhere to get money to pay for it.I therefore stole money to pay for the trousers becausethe time given to me to pay back had passed.”(boy, Uganda) 60“My brother and I went to town and pretended to bementally retarded, deaf and dumb and begged moneyfrom shops and passers-by. That day, we were at leastable to raise something to eat.”(14-year-old girl, Uganda) 61By criminalising most livelihood choices available tochildren and targeting their survival behaviours, thelaw in turn drives them towards more risky andexploitative options. With limited legitimate optionsfor livelihood, children surviving on the street are easyand useful targets for those running the drug andorganised crime trades. Substance abuse and tradingby the children themselves become both a meansfor survival and a way to survive. The use of drugsprovides these children with a means of temporaryescape from the world they live in as well as, in somecases, a hunger suppressant that enables them toget by. Being ‘high’ can be understood as a copingstrategy for children as well as a major bonding factorwith peers.“Taking shabu (amphetamines) makes you feelphysically alert and awake. It conditions the body andgives you longer stamina.” Jerry kept on giggling ashe continued narrating his story.“You will not feel hungry! Shabu users are thinbecause they do not like to eat. Their bodies are very18

1 CHALLENGING THE MYTHS ●active and stay wide awake even at night.” Jerryfurther explained that by taking a deck and ahalf of shabu, he can stay awake for 20 hours.“That is why I was so thin before.”Like any other drug abusers, ‘trip’ is the mainmotivation. There is nothing much to do in thecommunity except to wander around – spend thewhole night hanging around in the neighbourhoodwatching people stay up late and play video karera,an illegal gambling machine similar to a slotmachine in casinos. As shabu inhibits the bodymetabolism to long for food, I suspected shabuuse is also Jerry’s way of escaping from hunger. 62The response to the addiction of these children isinvariably criminalisation, unlike responses to similaraddiction by children from better-off families. Thehigh percentage of children in the Philippines arrestedfor amphetamines (shabu) or rugby consumptionis one example. Another is in Brazil, where it wasreported in 2001 that “offences involving adolescentswith drugs make up about 70 per cent of all offences.Whereas middle class young people who consumedrugs are considered in the context of a medicalapproach, young people from the lower classes whosell drugs are seen purely as criminals. This has ledto a huge process of criminalisation of poor youngpeople who overpopulate institutions for adolescentoffenders.” 63In view of the fact that substance abuse requiresmoney, it will inevitably push children like Jerry tosteal and even trade, bringing them further towardsconflict with the law and into the criminal justicesystem. Research with street children in Tajikistanfound that “about 40 per cent of street childrenregularly smell petrol or glue but there are also otherswho ‘distract themselves from reality’ by sniffing itfrom time to time. The children sniffing glue or petrolregularly also seem to steal more than others, and arelabelled as ‘thieves’ among the street children.” 64The sickness and death of a parent or their migrationaway can also have a particular major and suddenimpact on the life of the child, both emotionallyand economically. Children have always played animportant and positive role as carers in their families,including looking after other siblings and sometimessick or incapacitated parents. This is not only true ofchildren whose families are facing chronic poverty.Yet when a family is already facing serious economicchallenges, the loss of a breadwinner and carer willoften force children into taking on a more major rolein both areas. This often creates enormous personalchallenges for boys and girls, as well as resulting intheir adopting livelihood strategies that are likely tobring them into conflict with the law.Eleven-year-old Benben left home because hecould no longer take the responsibility of takingcare of his younger siblings when their motherdied. He felt neglected by his father. On the streets,he felt good bantering with peers. When theysniff rugby, 65 problems seem remote, he said. “Whywould I not leave home? I do all the work at home.It is so hard and tiring! I am still small, yet a child!I still have to take care of my younger siblings, lookfor food to feed them. My Papa does not care. I missmy Mama.” 66The major impact of the HIV and AIDS pandemichas now added another urgent dimension to thecare challenges faced by children. With increasingnumbers of child-headed households and childrenbeing responsible for the care of a number of otherchildren, the criminalisation of children who areout of ‘traditional care situations’, together with thefact that most of their livelihood options are illegal,will result inevitably in these children increasinglycoming into conflict with the law. Without areconceptualisation not only of children’s social rolebut also of their legal role and status, children in thesesituations will find themselves increasingly vulnerableand marginalised. They will be left unable to protecttheir rights against unscrupulous adults and theirviews, roles and responsibilities as children and ascarers will be left unrecognised and unsupported bylaws and bodies used to dealing with children onlythrough the agency of adults.Okello’s case, described on p.12, illustratespoignantly the impact of lack of protection combinedwith the impact of stigmatisation that results fromcriminalisation. Upon the death of both his parents,19

● THE RIGHT NOT TO LOSE HOPEhis uncle had appropriated the children’s propertyand as a result had driven Okello to the streets andto stealing. After being arrested for theft, Okello washelped by a local community-based organisation and,through the care and support of a ‘Fit Person’ (seeChapter 4.7), he began to rebuild his life and starteda small business.“He then vowed to save some money and bring theuncle to justice for the sufferings inflicted on him.When the uncle realised that the boy was seriouson the issue, he arranged for a mob to beat him upon the grounds that he was a thief and this led tohis death.” 67To say that poverty plays a major role in bringingchildren into conflict with the law is of course not tosay that only poor children commit crimes. Childrenwho come from better-off backgrounds, however, arein a far better position to avoid the criminal justicesystem and incarceration altogether: through theirparents being able to settle the matter out ofcourt; through being able to afford better legalrepresentation; or through being able to make bailconditions and get their families to stand as sureties.Equally, children who have some form of extendedprotective network through families and peers aremore likely to cope and identify better and saferoptions when a crisis strikes and their immediatefamily structures break down. Once in conflictwith the law, they will usually also benefit frommore positive outcomes, as the justice system is farmore likely to consider diversion and alternativesto incarceration where a family is engaged andwilling to supervise and support the child inthe community.The reality of children’s lives is that a range offactors are often at play at once, with one risk factorcompounding another or one protective factorsupporting another. It is by recognising the interplayof these factors and empowering children to buildon their own resilience and develop their own abilityand capacity to respond to the crises that affecttheir lives that they can be supported in makingbetter choices and identifying positive solutions,even in the face of what are too often appallingand limited options.Peer-bonding as a protection strategyAn important coping strategy for children facingcare and protection issues is to join a peer group forsupport and protection. For all children, this is anatural and important process of socialisation andgrowing up. For teenagers in particular, such groupsare recognised as “the vehicle for the transition” from“the protected life of the family to the independentlife of adulthood”. 68 For children who are facingdifficult issues in their relationship with their families,schools or immediate communities, peer groupsrepresent a particularly crucial extended supportnetwork. Joining a group or a gang provides themwith a surrogate or extended family and a socialenvironment that is otherwise lacking. For manychildren living or working on the streets, joining agang is rarely just a matter of choice but of basicsurvival. Violence on the streets, whether at thehands of other youths, the police and vigilantes orother adults involved in crime, means that being amember of a group is a crucial strategy for protectionand survival. It empowers the child through peersupport, provides him or her with a new social statusand identity that have otherwise been lost, and inmany cases enables the child to reclaim both socialand physical space on the streets.“Seventeen-year-old Gino recounts how he took careof himself on the streets since he left home when hewas seven. Mostly, he took on all sorts of menialtasks in exchange for food or loose change. Hunger,however, would often push him to stealing. To survivethe harsh street life, he joined a gang. He said healways had a knife or some weapon with him forprotection. ‘We only carry them around to defendourselves. We do not want to be caught unprepared,particularly myself. I am a vagrant! I do not havemoney for hospitalisation. I cannot afford medicines.I will simply die helpless’.” 69The increased criminalisation in recent years of gangsand children and young people who are part of them,whether or not they have committed a crime, has20

1 CHALLENGING THE MYTHS ●had far-reaching negative consequences for both thechildren and their societies. It is part of a public orderstrategy that wants to demonstrate that politicians are‘tough on crime’ and is generally popular with themedia, who find crime stories commercially attractive.Yet it not only fails to address the real issues behindthe levels of gang-related violence, including the roleof the drug trade and organised crime, it also marksthese young people as targets for stigmatisation,further exclusion from opportunities and in manycases results in their death. It makes it virtuallyimpossible for them to make different choices andseek a different life, whether through employment,education or other positive involvement in theircommunities.The case of Honduras (see chapter 4) provides astriking example of the way the criminalisationapproach can simply reduce even further the optionsopen to these young people and expose them and theircommunities to an even greater level of violence. 70Children who are thought to be members of gangsare targeted for extra-judicial executions by vigilantegroups and death squads linked to the security forces.They are faced with death and violence at the handsof their own gangs if they attempt to leave them.The police, who do not differentiate between ex-gangmembers and active gang members, continuouslyharass them on the streets. They are almost totallyexcluded from the work force and educational orvocational opportunities through stigmatisation thatsees them first and foremost as a public security threatand rarely as the individuals they are, hoping for abetter life. Their “tattoos act as a highly visible barrierto reintegration with society”, leading some of themto desperate measures including resorting to using“battery acid or acid creams to remove their tattoos –leaving scars across their faces and bodies”. 71 Most ofthese children and young people have simply beenmade ‘persona non grata’ in societies and communitiesthat make it virtually impossible for them to changeand to make different choices. By criminalising themfor who they are rather than what they have done,they are collectively condemned to remain imprisonedin the gang and violence culture that is too often theironly option for staying alive and surviving as well asprotecting their own families. These children andyoung people are simply left facing impossible choices.“We want them – community and local organisations– to help us move forward. We cannot do it alone. Wereally need a place to work. We’re tattooed so we can’tget work.”(Honduras) 72Being ‘out of place’: dropping out of schoolChildren’s loss of place and status does not onlyoccur when they are facing acute survival issues onthe streets. Exclusion from their ‘attributed places’(such as schools) also results in a much greaterlikelihood of their coming into conflict with the lawand being exposed to violence. Children who dropout of school, or who are excluded permanently, findthemselves in an in-between zone where vocationalalternatives and employment opportunities are few.At the same time, the behavioural issues that mayhave led to their dropping out in the first place arecompounded by their alienation from the very placewhere much of children’s socialisation, educationaland recreational activities are meant to take place: theschool playground.A majority of the children referred to in the casestudies in this report have dropped out of school,either to work to support their families or themselvesor because their parents were unable to pay the costsof their education. The impact of both fees andhidden costs found behind so many of the ‘free’education systems cannot be underestimated, notonly in terms of these children’s lives but also interms of the resulting cost to society, financial andsocial, including the increased likelihood that thesechildren will come into conflict with the law.In other cases, children drop out because they feeleducation is irrelevant to their lives or because they arefacing particular educational or behavioural problemsat school. 73 In Kosovo, for example, “the reasonmost often cited for lack of school attendance is aneconomic one: many young people work to supporttheir families, and experience has shown many thatgetting an education will not necessarily improve their21

● THE RIGHT NOT TO LOSE HOPEearning potential”. 74 Either way, the impact of suchinvoluntary or self-imposed exclusion is broader thanthe loss of education for the child. In a British studyon the effect of permanent exclusion from school onyouth offending, the authors noted that “permanentexclusion tended to trigger a complex chain of eventswhich served to loosen the young person’s affiliationand commitment to a conventional way of life. Thisimportant transition was characterised by: the loss oftime structures; a re-casting of identity; a changedrelationship with parents and siblings; the erosionof contact with pro-social peers and adults; closerassociation with similarly situated young people andheightened vulnerability to police surveillance.” 75For these children, the lack of appropriate alternativesand meaningful occupation, together with thestigmatisation that comes with being ‘out of school’,result in their displacement to the street and to anenvironment that brings them increasingly at risk ofcoming into conflict with the law. 76 In addition, being‘out of school’ can itself be a crime as a status offencewhich remains on the books of many countries thatstill criminalise truancy. Rather than addressing anyof the issues behind the behaviour, which could besimply a child’s response to particular challenges faced,including bullying by peers in school or violence athome, status offences place the problem entirely onthe child and on his or her behaviour. The addedcriminalisation simply confirms the identity of thechild as a ‘problem’ to the child himself or herself,to the authorities and to their community, thusreinforcing their marginalisation and narrowingfurther the options available to him or her. Evenwhere truanting itself is not a crime, the stigmatisationthat is associated with being ‘out of school’ will oftenlead to a much greater risk of criminalisation. In theUK, for example, it was found that “truantingstudents, once apprehended, are more likely tobe formally cautioned for low-level offences thantheir non-truanting counterparts, more likely to beprosecuted than cautioned for more serious ones,and more likely to be sentenced to custody than acommunity penalty. This means that their careers inthe youth justice system may well accelerate at a fasterrate than their criminal careers (Graham, 1988).” 77The reality for children who find themselves ‘out ofschool’ is that the lack of alternative educational oremployment opportunities together with the lossof status and stigmatisation attached to being ‘outof place’ all result in increased likelihood ofcriminalisation and a push towards more riskybehaviours. The options for these children tomake different choices are simply often not there,compounding the challenges they were facing inthe first place and reaffirming their alienation froma society and a community where they feel they donot belong.Being ‘out of place’: on the streetsWhat do you normally do around here?“Sit outside the shops. Have a laugh.”Why here?“Because there’s nothing else to do. There’s notmuch places else to go. There’s nowhere else out…Yeah, other places you get moved by the policeall the time.”(14-year-old boy, UK) 78Children’s displacement is both a social and a spatialconcept. Being ‘out of place’ for a child means beingoutside of the physical places that are traditionallyattributed to childhood, such as homes or schools ordefined recreational areas when they exist. Instead,children find themselves operating and even livingin areas that are considered ‘public’ but in fact aregenerally reserved for the adult public. For many ofthe children who are displaced temporarily or morepermanently to the streets by their life circumstances,the streets are increasingly ‘no-go’ zones. The increasedreliance on curfews, dispersal orders and anti-socialbehaviour orders that criminalise children’s use ofpublic places, as well as their behaviour in themwhen deemed socially ‘inappropriate’, represents yetanother form of social exclusion for these childrenwhich brings them into direct conflict with the law.The Barangay Pinyahan in Quezon City in thePhilippines provides a particularly striking example ofcurfew on minors from 10pm until 4am, with thefollowing conditions:22

1 CHALLENGING THE MYTHS ●“Except for adults, it shall be unlawful for any personto make a display in public and cause disturbance onthe peace of the other person through the followingacts:(a) Drinking and dancing in a public displaywithout any reason to celebrate such as birthdayparty, wedding celebration and the like.(b) Prolonged stay outside his or her residentialabode.(c) Leisurely walk on the streets of the barangaywithout valid reason or purpose.” 79Similar examples of curfews or restrictions onyoung people’s use of public spaces and freedom ofmovement and association can be found in the UKand the USA and can be even more restrictive. 80A recent dispersal order notice in a major residentialarea of London in the UK, for example, read: “If youare under 16 you are not allowed to be here betweenthe hours of 9pm and 6am unless you are under theeffective control of a parent or responsible person overthe age of 18. You may be removed to your home orplace of safety if more appropriate.”For children whose lives and work are on the street,curfews are simply a criminalisation of their lifestylesand survival options and expose them further to thearbitrary and often violent criminal justice system.This includes police officers and private securityguards wanting to be seen to be doing somethingor simply using the laws to extort whatever they canfrom those who have little choice.But even for other children who may have otheroptions, curfews and other restrictions on their useof public spaces also have negative consequences.The limited spaces available for children to meet andsocialise outside of an adult-controlled environmentsuch as homes and schools make the streets of theircommunities particularly crucial spaces for them.It is where they develop their relationships with theoutside world and their identity as members of acommunity, where they ‘hang out’. The heavypolicing and public mistrust of children on the streetsand in commercial spaces, including shopping malls,simply confirm to children that they are unwantedor even ‘outlawed’ from most areas which make uptheir neighbourhood. They are to be contained withinsmaller and well-defined environments ruled primarilyby adults. Again, this is particularly problematic foryoung people who are facing challenges in theirfamilial or school environment because it leaves themwith nowhere to go to escape and seek support andadvice from others. In addition, for “less affluentchildren, the street offers the main social forum,especially as a large proportion cannot afford toparticipate in other leisure and recreationalopportunities, or they choose not to do so”. 81This social and spatial exclusion is problematic onmany counts. It drives many into adopting even morerisky behaviours by looking for more ‘out of reach’places away from a constant adult gaze. It confirmstheir relationship with their communities, and withthose who enforce the rules of their communities, asone of confrontation, mistrust and sometimes evenfear. They are not accepted as legitimate membersbecause they are children and this confirms a senseof ‘not belonging’ and of unfairness that the worldaround them is defined by adults and that they arepowerless in the face of rules that are defined forthem but not with them.“I am not asking anyone for help; no one wants tolisten. Why would I ask my parents if they would beatme up?”(primary school pupil, Bosnia and Herzegovina) 83It compounds for many children the already naturalprocess of wanting to be seen as ‘different’ and to testand break the rules. It increases enormously thelikelihood that they will come into conflict with thelaw. As a result, many children and young peopleare entering the criminal justice system and findthemselves criminalised for what began as minoradolescent misbehaviour. 82On the one hand, the media and advertising aimed atchildren encourage them to believe in the importanceof materialism and the need to consume, to seeownership of things as being a defining criteria forgaining status in life and society. 84 On the other hand,23

● THE RIGHT NOT TO LOSE HOPEchildren are banned or restricted from enteringshopping malls and viewed with suspicion when theydo, unless they obviously have money and are able toconsume. These conflicting discourses are bound tosend powerful messages to children, particularly thosewho do not have money to buy goods or to pay toenter recreational spaces that are the only truly definedspaces offered to children outside of their schoolsand homes. These messages speak of exclusion unlessthey can afford inclusion, of being status-less unlessthey already belong, and of disempowerment unlessthey can impose power. Yet, these discourses are rarelychallenged, but instead the choices that children makewithin the restricted space that we allow them areconstantly questioned.It is striking that children’s social and anti-socialbehaviours are so heavily watched and policed whenat the same time they are barely recognised as socialactors outside of the family or the school environment.Their lack of participation and control over their lives,over decisions that are made for them and on theirbehalf and over their environment mean that, on theone hand, children are treated as irresponsible andincapable human beings, ‘adults in waiting’ or ‘nonadults’,while on the other hand their every move,their location, and their behaviours are closely watchedand ruled by communities that want them to abideby their rules and behave as responsible citizens.As Matthews points out, “the non-involvement ofchildren, according to their maturing levels of interestand skill, creates citizens with little competence, whohave learnt since childhood that society comprisesthose who have responsibility, and those whodo not”. 85By being disenfranchised from their communities andprovided with few incentives to participate, childrenare given few if any opportunities to exercise theircitizenship skills and develop their sense of communalresponsibility and belonging. Instead, they are acutelyaware that they live in a world ruled by adults wheretheir views, ideas and solutions are not valued andwhere the choices they make on a daily basis are notrecognised. Through exclusion and criminalisation wereinforce their feeling of powerlessness and reducefurther their capacity to recognise options and exercisejudgement. They feel that they have “little controlin their lives and that their options are narrow. Thisfeeds into the mentality of ‘no choice’ and ‘I had to’presented by many young offenders as a reason fortheir behaviour.” 86 It also reinforces their sense ofunfairness and alienation in the ‘adult world’ whichcan, in turn, drive them even further into adoptingrisky and ‘anti-social’ behaviours.By restricting children’s social and spatial involvementin their communities and in their lives and by notrecognising and supporting their capacity to consideroptions we are, in effect, undermining their ability torespond to the situations and problems they face bymaking better choices. We discourage them fromseeking solutions, including solutions to the violenceand abuse they face or they perpetrate. We alienatethem from their communities and yet we demandthat they feel part of them and abide by their rules.We remove their opportunity to take responsibilityfor themselves and yet we are quick to attributeresponsibility to them when they do make what weconsider are the ‘wrong choices’ such as break thelaw or behave inappropriately. The reality is thatchildren do make choices, often in circumstanceswhere the only choices available to them are bleakand sometimes even dangerous.The recognition of children’s role as social actorswhen they come into conflict with the law must bemirrored by recognition of their role as members oftheir societies. Instead of relying on inappropriatecriminal justice responses that narrow even further theoptions available to them, we need to engage childrenin seeking their own solutions and determining theboundaries of their own behaviour towards others.This is precisely what socialisation is about. Childrenneed the opportunity to be recognised not just asvictims or as perpetrators but as individuals who aremembers of families, communities and societies;individuals who are facing multiple challenges andwho need to be empowered to respond to thesechallenges and to make better choices for themselvesand their communities.24

1 CHALLENGING THE MYTHS ●Notes5Advocasey (2003) p.26There is a comprehensive and far-reaching body of internationallaw which regulates juvenile justice, in particular Articles 37 and40 of the UN Convention on the Rights of the Child, the UNStandard Minimum Rules for the Administration of JuvenileJustice (The Beijing Rules), the UN Rules for the Protection ofJuveniles Deprived of their Liberty (JDLs), the UN Guidelines forthe Prevention of Juvenile Delinquency (The Riyadh Guidelines)and the UN Guidelines for Action on Children in the CriminalJustice System (Vienna Guidelines)7Article 40(1) of the Convention on the Rights of the Child8Minimum Rule 11. Diversion. Commentary. United NationsStandard Minimum Rules for the Administration of JuvenileJustice (The Beijing Rules)9There is currently no accurate figure for the number of childrenin detention. States continue to fail to collect proper data inrelation to children who are deprived of their liberty or collectonly partial data. For example, in some cases they collect dataonly in relation to those detained post-conviction or only inrelation to children detained in formal penal institutions withoutaccounting for those detained in other state institutions includingreformatory schools, re-education centres, ‘approved schools’,vagrant homes etc. See Meuwese (2003)10See Etemadi et al (2004): Table A 18.4 p.338; Parry Williams(2005); Save the Children Sweden (2005)11According to a survey carried out in February 2005 by Save theChildren Denmark and Prison Fellowship (Dayster ConsultInternational) on 20 prisons located in the six big regional statesof Ethiopia, only 36 per cent of the children in the 20 prisonswere convicted of an offence12Advocasey (2003) p.2913http://www.crimeinfo.org.uk/ Go to Youth People in Prison Factsheet. The Howard League’s weekly prison figures for July 2005recorded that there were 11,018 under-21-year-olds detainedat that time in the UK. http://www.howardleague.org/weeklyupdates/2005updates/July05.htm. As a result of England’smore punitive approach adopted in the aftermath of the highprofile murder case of a two-year-old by two children in 1993(the Bulger case), there has been “an 800 per cent increase overten years in the number of children aged 12–14 in custody inEngland and Wales. This is within an overall 100 per cent rise inthe same period in the number of young people aged under 18in custody, which includes a 400 per cent increase in girls. […]The Home Office’s own research shows that the main factors inthis dramatic increase in juveniles in custody are the increasingimposition of custodial sentences by the courts and the extendedlength of the sentences. It was not the case that more youngoffenders were appearing before the courts during this period.”NCH Scotland (2003) p.1114Muncie (2004) p.15. The WHO report on Violence and Health,for example, uses the concept of youth to include all those under29 years old. As a result, its chapter on youth violence whichpoints out that the majority of violent acts are committed byyouths, does not differentiate between the very different pictureof violence committed by children under 18 years and violence byyoung adults in their early twenties15A good example of this problem is in Uganda where the crime of‘defilement’ is defined as a capital offence and constitutes a veryhigh percentage of crimes committed by children in that country.Defilement, though, includes all sexual activities between childrenunder 18 years old, whether consensual or not, and is seen to beused, in many cases, by families to extort money as ‘reparation’even where the two young people involved are in a consensualrelationship as boyfriend and girlfriend. (See Uganda Goodpractice model in Chapter 4 of this report.)16The good practice examples in this report relate to Laos,Ethiopia, Kenya, Uganda, Bosnia and Herzegovina, thePhilippines, Honduras and China. Save the Children also workson this issue in Afghanistan, Bangladesh, Cambodia, DRC,Liberia, Pakistan, Montenegro, Mozambique, Nepal, Sri Lanka,Syria, the occupied Palestinian Territories (oPT), Tajikistan,Vietnam, UK and Yemen17‘How severe is America’s Juvenile Crime Problem?: Juvenilecrime rates did soar in the late 1980s and early 1990s, but evenat the peak only a tiny fraction of youth were involved in seriousviolence.’ http://www.aypf.org/lesscost/pages/fact02.html. In theUK, violence against the person, both serious and minor, accountfor less than 14 per cent of indictable offences and theft andhandling stolen goods account for just under half of all youthcrime. Muncie (2004) p.1518This was confirmed in 1999 with only 4.35 per cent of allarrests of young people being for violent crimes. See United StatesDepartment of Health and Human Services (2001) YouthViolence: A Report of the Surgeon General25

● THE RIGHT NOT TO LOSE HOPE19In 1997, status offences such as Curfew and Loitering lawviolations (182,700), Runaways (196,100), Disorderly conduct(215,100), Drunkenness (24,100), Vandalism (136,500), Vagrancy(3,100), Gambling (2,600) and Drug abuse violations (220,700)accounted for 34.5 per cent of all juvenile arrests (total 980,900out of 2,838,300). See Office of Juvenile Justice and DelinquencyPrevention (1999) Juvenile Offenders and Victims: 1999 NationalReport. National Center for Juvenile Justice. US Department ofJustice, p.11620“Contrary to public opinion, the posturing of politicians, andmedia reports the rate of juvenile offending in comparison tooffending by adults remains relatively low, especially consideringthat under-18s make up more than 50 per cent of the population.Between January 1996 and May 1999 only 5.5 per cent of the42,000 denunciations made were against young people. […] Themajority of crimes committed by children are against property,such as robbery and theft, followed by offences such as murder,sexual crimes and crimes against security, specifically the crime ofillicit association for being a member of a gang.” (Harvey, 2004)21World Bank (2004) p.2222Save the Children UK (2004a) p.2723Dunn (2000) quoting from Children in the Dock: A SituationAnalysis of the Juvenile Justice System in Kenya by ANPPCAN(African Network for Prevention and Protection against ChildAbuse and Neglect)24Home Office (2003) http://www.homeoffice.gov.uk/rds/pdfs05/r244.pdf25UNICEF (2000) p.89: See also Muncie (2004) p.1526Anti-Social Behaviour Orders (ASBOs) were created in the UKunder the Crime and Disorder Act 1998. They can be servedagainst any person over the age of ten and since their introductionin 1999, nearly half of ASBOs served have been served onunder-18 year-olds. (Fox, 2005)27“Most of the jobs street children do are typical boy’s jobs. Besidesselling things at stalls and helping in restaurants and cafes (jobsusually done by children living in families) there only seems to bethe option of begging and prostitution left for street girls to earnmoney.” (From Munsch et al, 2004, p.37)28From an interview by the Research Team in Gulu during thecompilation of information for the ‘Comparative Study &Evaluation of the Impact of the Children’s Act in relation toCICL in 8 districts of Uganda’, 2005 (Case Study 13)29Amnesty International (1998) p.57. The Report points out thatof children arrested throughout the USA in 1996, girls accountedfor 57 per cent of the arrests for running away from home, 29 percent of the arrests for breaching curfews and 52 per cent of thearrests for prostitution30See, for example, the use of safe custody in Bangladesh wheremagistrates can pass an order for the detention of boys and girls in‘safe custody’ (in jail or vagrant home) in cases where they were thevictims of rape or sexual assaults, in cases where they were rescuedfrom brothels, or from traffickers and, in the cases of girls andwomen, where they have married someone from another religion,they have married without the consent of their guardians, theyhave been thrown out of their family or abandoned by theirparents. (See Khan, 2000, p.14)31Munsch et al (2004) p.1232On the impact of violence against children in the family, seealso the other two International Save the Children Alliancecontributions to the UN Study on Violence against Children:Save the Children/International Save the Children Alliance (2005aand 2005b)33The impact of physical and humiliating punishment onchildren’s behaviour is clearly acknowledged in the Guidelines forthe Prevention of Juvenile Delinquency (The Riyadh Guidelines)which state that “No child or young person should be subjected toharsh or degrading correction or punishment measures at home, inschools or in any institutions.” No.54 (1990)34Save the Children UK (2005) Back on Track p.7135Johnson and Nurick (2005)36Munsch (2004) p.1237Wernham (2004) p.4938Status offences are used to penalise and regulate children’sbehaviours that are perceived as inappropriate or “dangerous” byadults, such as truancy or running away from home and whichwould not be a crime if the same act was committed by an adult.International law requires the abolition of status offences to“prevent further stigmatization, victimization and criminalizationof young persons”. See Art. 56 of the UN Guidelines for thePrevention of Juvenile Delinquency. (The Riyadh Guidelines)39“Sexual abuse in the family can confirm the young perpetrator’sinternal self-image of being an unwanted child, a wicked childwho can’t be trusted, who isn’t worthy of love and affection, who26

1 CHALLENGING THE MYTHS ●doesn’t deserve to be happy, who doesn’t belong.” (Nyman, Risbergand Svensson, 2001, p.40)40Muncie (2004), p.30 quoting Boswell (1995). See also Smith(2004)41The links between children being sexually abused and becomingsex offenders in turn are more complex. Children who have beensexually abused do not, by and large, go on to commit sexualoffences but research has shown that about one-third of thesechildren do. In addition, research with young sex offendershas shown that approximately half “have either been physicallyabused, neglected by their parents or witnessed violence in theirown family”. Långström (2000) quoted in Nyman, Risberg andSvensson (2001). See also ‘Cycle of Child Sexual Abuse: linksbetween being a victim and becoming a perpetrator’ BritishJournal of Psychiatry, Dec 2001;179:482–9442Munsch et al (2004) pp.6–743See, for example, the recommendations of children in conflictwith the law in Johnson and Nurick (2005) and in Etemadi(2004) pp.78–12344Ancheta-Templa (2004) pp.27–2845Munsch et al (2004) p.846Wernham (2004) p.5947In Nigeria, for example, research in March-April 2003 by theNGO Human Development Initatives found that “60 per cent ofchildren detained in the Boys’ Remand Home, Oregun, Lagoswere non-criminal cases (of which 55 per cent were boys ‘beyondparental control’, 30 per cent were care and protection cases(‘found’ children) and 15 per cent were children who had beenrounded up in Task Force street raids). Likewise, 80 per cent ofgirls detained in the Girls’ Remand Home Idi-Araba were noncriminal cases, ie, ‘beyond parental control’, ‘care and protection’and civil disputes cases.” (quoted in Wernham (2004) p.122)48Save the Children UK (2003b) p.2949Harvey (2005) p.5950Khan (2000) p.14 and see also Report of the Special Rapporteuron Violence against Women on: E/CN.4/1998/54,http://www.hri.ca/fortherecord1998/vol3/bangladeshtr.htm51The detention of girls who have been sexually abused for theirprotection is particularly acute in countries where ‘honour killings’are practised, as in Pakistan and Jordan, for example. (See Marcus,1993) and Moussa (2005) Report about the Sexual Assault andChildren Exploitation in Syria, p.25: “Most often, when cases [get]to the police and thus to the courts according to the legal andjudicial system in Syria, any assaulted child will be put into areform institute for delinquent juveniles and is not handed over totheir parents, for fear of harsh parental punishment as is the casewith raped girls who might be killed because of honour crimes, orwho might be obliged to marry their rapist.”52See UNICEF (2000) ‘Leaving institutional care: an anxious timefor vulnerable young people’ p.9353Save the Children UK (2000) Shoshur Bari, Street Children inConflict with the Law p.3554See Social Exclusion Unit (2002)55Munsch et al (2004) p.756Khan (2000), p.1957Khan (2000), p.19. Similarly in Egypt, Human Rights Watchreported that “the categories ‘vulnerable to delinquency’ and‘vulnerable to danger’, set forth in Egypt’s Child Law ostensibly toprotect vulnerable children, have become a pretext for mass arrestcampaigns to clear the streets of children, to obtain informationfrom children about crimes, to force children to move on todifferent neighbourhoods, and to bring children in for questioningin the absence of evidence of criminal wrongdoing. The number ofsuch arrests has sharply increased since 2000. There were morethan 11,000 arrests of children on these charges in 2001 alone,accounting for one-quarter of all arrests of children in Egypt thatyear.” (Human Rights Watch, 2003)58The sampaguita are small white fragrant flowers foundthroughout South-East Asia. Shabu is a white crystalline substanceknown as metamphetamine hydrochloride and is a commonillegal drug. Rugby is a popular word for a type of commercialadhesive considered as a dangerous habit-forming drug and ofteninhaled by children in the streets. (From Ateneo Human RightsCenter, 2004, p.57)59Kakama (2002) p.1960ibid61ibid p.1462Save the Children UK (2005): Back on Track Case Study 6.363Wernham (2004), p.5427

● THE RIGHT NOT TO LOSE HOPE64Munsch et al (2004), p.3065See footnote 5866Ancheta-Templa (2004) p.2867See footnote 28.68Bee (1992) pp.436–3769Ancheta-Templa (2004) p.2870For in-depth analysis of children’s and youth involvement ingangs and organised armed violence see Asociacion Cristiana deJovenes de Honduras (ACJ)/Save the Children UK (2002);Downey (2003); Downey (2005)71Nurick, R (2005) Trip Report to Honduras for Voices project.Save the Children UK72Johnson and Nurick (2005)73In the UK, a study of children in detention found that nearlyhalf of the children had “literacy and numeracy levels below thoseof an average 11-year-old”; more than one-quarter had “literacyand numeracy levels of seven years old […] 87 per cent hadmissed significant periods – often years – of education; 41 percent had been previously excluded from school, with 37 per centnon-attendees. None was a regular attendee.” (Social ExclusionUnit, 2002, p.157). For an important insight into children’s,parents’ and teachers’ perspectives on truancy in Bosnia andHerzegovina, see also Save the Children UK (2003a)74Richardson, J ‘Youth in Kosova/Kosovo: A situation analysis’,quoted in World Bank (2004) p.2675Berridge et al (2001) p.vi76It is important to note that whatever the circumstances oftheir exclusion from education, children who have been inconflict with the law invariably view education as totally centralto their hopes and to their future. In a consultation with childrenin the ‘Correction Centre’ (Tongi Kishore Unnayan KendraKUK) in Dhaka-Bangladesh, for example, three out of eightrecommendations by children related to the need for educationsuch as: provide effective and relevant education for all children;mainstream the education system; provide certificate from KUKvocational training to search for jobs (10 January 2005). See alsoJohnson and Nurick (2005)77Berridge et al (2001) p.2378Matthews (2001) p.6179Ateneo Human Rights Center (2004) p.5980In the USA it was estimated that over 1,000 localities hadimposed night-time curfew orders and that 76 cities had evenimposed daytime curfews (Matthews, 2001). In the UK,Section 30 of the Anti-Social Behaviour Act 2003 introduced‘dispersal orders’, in effect giving the police and local authoritiesthe power to declare certain zones ‘no-go areas’ for children underthe age of 16 between the hours of 9pm and 6am, whether theyhave committed any ‘anti-social behaviour’ or not. Whileno criminal offence is required for dispersal orders to be usedagainst children, the breach of the order by the child is a criminaloffence which exposes him or her to a fine or even a term ofimprisonment up to three months. These collective restrictionshave been recently challenged in the UK courts in the case of a14-year-old who pointed out that these measures, in effect,penalise all children and would imply that they all are potentialsources of anti-social behaviours. Case of W [2005] ECWA Civ1586. It is interesting to note that the legislation uses provisionsrelating to child protection to authorise the removal of a childfrom the streets without any of the required determination thatthe child is indeed facing any risk. The Court found that thepolice were not authorised to use force to remove a child orreturn a child home when found in the dispersal area withinthe curfew period81Matthews (2001) p.6182See Howard League (5 April 2005) Abolish ASBOs for Childrenhttp://www.howardleague.org/press/2005/050405.htm83Save the Children UK (2003a) p.1584“…if a child’s role model is some tycoon who made his moneyyesterday, we really have to think about this. Subconsciously,children understand that nothing that is done in a straightmanner can give results in this system.” Mother of a primaryschool student quoted in Save the Children UK (2003a)85Matthews (2001) p.5086Hine (2004) p.4028

Case study 2: Lufta’s story (Bangladesh)Lutfa (15 years old) is the second of four children.Her mother died when she was young. Her fatherused to work as a brick-crusher and her eldest sisterworked as a hired help in a household. As her fatherwas absent during most of the day, Lufta also workedoccasionally as a casual servant in nearby households.There was no love lost between Lufta and her father,who used to beat her up frequently, although he didnot harm his other children. He used to stop herfrom playing or from watching TV in the neighbours’houses. He frequently asked her to leave home andsaid that she was not his child.Once she secretly went to watch TV at herneighbours’. Her father found out and beat her, tyingher hands with her scarf. She lost consciousness as aresult of this severe beating. When she regainedconsciousness she found that her father had left herand taken his other children with him. A woman froma nearby house then kept her as a maid servant,paying her no wages. After she had worked there foralmost two years, the woman became angry with herone day and gave her 130 taka and threw her out ofthe house. Lufta was helpless and decided that shewould go to Dhaka. She was ten years old.When she arrived at Sylhet Railway Station she mettwo other girls. Some boys started to tease her, andthese girls called for help from two policemen. Onepoliceman said, “There must be something bad aboutthis girl,” and took her to a nearby room. When thetwo girls asked the police to let her go, they forcedthem to leave.The room had a bed in it.The two policemen rapedher in that room. When Lutfa tried to stop them, oneof her hands was broken by the policemen. Later theyabandoned her at the station. After half an hour, twoother people took her to a hospital. (Later she foundout that they too were policemen.) She was treatedthere for a few days. She told her rescuers and thedoctors about her predicament. After she hadrecovered, she was taken to a red building by herrescuers, where her particulars were noted down, andshe was then sent to jail (according to her descriptionsof the place).Lufta was kept in a room with three other girls whowere pickpockets. After three months she was takento the court hajat (court lock-up) where she waskept with other male prisoners. Some of the boyscut her with blades at the court hajat and whenshe complained she was sent back to jail. After twomore weeks she was presented to the court and agovernment solicitor pleaded her case. But before shespoke to the magistrate the offending policementhreatened to kill her if she told the truth. Lutfa didn’thave the courage to identify the policemen to themagistrate, although they were just in front of her.While coming back from the court, some womenprisoners managed to escape from the police van onthe pretext of going to the bathroom.They took Lutfawith them and abandoned her near the rail station.She came to Dhaka during the night and slept amongother homeless women at the station.She was once again teased by young boys the nextday but was rescued by the ticket collector who gaveher some food and asked her to wait in his office.It was here that she met two girls from an NGO(Aparajeyo Bangladesh) that worked with streetchildren. She was later brought to the women’shostel of the NGO. At present she works in agarments factory.Lutfa is still traumatised by her experience and herhands still shake when she thinks about those peoplewho violated her when they were supposed toprotect her. 8787Case study taken from Khan (2000) p. 2829

2 Children’s experiences in thejustice system“I was severely beaten by the prison men – it’s whenI realised that prison is like death.”(boy, aged 17, caught for being idleand disorderly, Uganda)Numerous reports published from virtually everycountry in the world highlight the violence faced bychildren once they come into conflict with the law. 88While the scale of these abuses varies greatly fromindividual incidents to systemic violence, there canbe no doubt that once a child comes into conflictwith the law, he or she is exposed to a much higherrisk of facing violence.The very nature of the justice system, providingextensive powers to some individuals over the lives ofother individuals under a state mandate, the relianceon coercion, control and institutionalisation, theretributive nature of the system, the gathering underone roof of individuals who often have violent andtroubled backgrounds, the isolation away from thesupport network of families and communities, allprovide an environment that, if not constantly andclosely regulated and monitored, can lead to egregioushuman rights violations and abuses, not only by stateagents but also by other prisoners.First contact: violence and lawenforcementChildren’s experiences of coming into conflict withthe law tend to begin with their first encounters withpolice or local security officers, and these are oftenbrutal. As was described by Mae Fe Ancheta-Templain her study of children who come into conflict withthe law in Davao in the Philippines, “The momentchildren are arrested, they become particularlyvulnerable in the hands of authorities who havepower over them. The research found that mostviolations of children’s rights happen during arrestsand detention at police stations. Violations rangefrom ignoring standard operating procedures coveringchildren’s rights, to verbal, physical and sexual abuseand exploitation of children.” 89One of the striking and disturbing findings in ourwork with these children is the level of fear anddistrust that children experience in relation to thelaw enforcement agencies, the very bodies that aremeant to protect them.“Q: When you live in the street what are youafraid of? Most of all?A: Mainly of police.Q: Only of police?A: Yes… They take us into custody, beat us,torture us.Q: Do they take you into custody lots of times?A: E-he, if you could only come and see us there.Q: And he would take money to set you free?A: Yes. In that children’s custody we were beatenso much…A: OK, if we steal something they confine us, ifwe wash the cars, they confine us. What shall wedo?… [crying]A: Whatever, it is a DIA or a custody, children werebrought, tortured and made clean the toilets. Thatchild didn’t steal anything, he washes the car, thatpoor child comes from somewhere in hope of earningsome two somoni, but you treat them in this way.You better go and see that place.”(Soubhon, 16, Tajikistan) 90“There is an interview before one is sent inside thecell. When your offence is theft, you are beaten up30

2 CHILDREN’S EXPERIENCES IN THE JUSTICE SYSTEM ●but when it is only curfew violation, you are justsent straight to the jail cell.The boys are beaten up and their cheeks are markedwith Xs. They command the other prisoners in thecell, then I was beaten up again. The police justlaughed.”(Boy, the Philippines) 91From immediate violence upon arrest, attemptedextortion in exchange for promises of release, tortureto extract a confession, regular beatings and furtherviolence, including sexual abuse, when in policecustody, the continuum of violence that many childrenexperience at the hands of law enforcement agenciesmeans that the agencies are ‘all powerful’ as far as thesechildren are concerned. Usually isolated from theprotection of families, who in some cases even viewthe use of violence by the police as part of ‘teachinga lesson’ to the child, often with no other adults tointervene on their behalf, these children are particularlyvulnerable to violent and corrupt police officers.In addition to violence, rampant corruption withinsome police forces, often compounded by lowlevels of salaries, leaves children at the mercy ofunscrupulous officers who use the round-ups, curfewsand other restrictions on children’s use of public spacesas an easy means of supplementing their meagreincomes. In Tajikistan, for example, researchers foundthat the leaders of street children’s gangs collected“about 70–75 per cent of the money earned by thechildren. With this money they pay the bigger leaderand the police to ensure that they do not botherthe group. In this way, the street children’s gangsare part of a bigger system of paid-for ‘protection’or corruption.” 92At one extreme, the police may even become activelyinvolved in the elimination of ‘undesirables’, oftenchildren and young people accused of being gangmembers or deemed to be ‘bad for business’ becausethey live and work on the streets. The followingcases of extra-judicial killings of children and youngpeople by death squads and vigilantes in Davao in thePhilippines and Honduras are by no means exceptionsnor even restricted to those two countries. 93Children and young people killed in Davao,the Philippines“From January 1999 to December 2002, at least29 people aged 18 and below who had been involvedin petty crimes and illegal drugs were reported killedin Davao City. All were either stabbed or gunneddown in busy streets by unidentified men, usuallyriding motorcycles, with some cases happening inbroad daylight in the full view of bystanders. Thenumber of young people aged between 18 and 25who suffered the same fate was 62, as monitored bythe Kabataan Consortium and the Tambayan Centerfor the Care of Abused Children, Inc. Many of thevictims had either been detained by the police manytimes when they were still children or had just beenreleased from jail at the time they were killed.Many who witnessed the killings were afraid to testify.Fifteen-year-old Biboy reports how he witnessed anexecution:“We were just sitting there at ____ (a populatedarea). We were already high.I was with my older brother and some friends.____ (A friend, the victim) passed by. He told us tostay put. He said we might be dragged into trouble.He seemed to know what was coming. He just satdown. Then a police officer on a motorcycle passedby. I even recognised his motorcycle. I used to washit for a fee.When he passed by, pak! The policeman had hishead covered. I was sure it was a policeman – heavilybuilt. I knew his motorcycle. He was not in uniform,just civilian clothes. He just pointed his gun, pak!He just went by, pak! Bull’s eye! Blood even splatteredon my face! Then, our friend looked back at theassassin and that was when he was shot in thehead, dead.Police officers around just looked on instead ofhelping us. ‘Boss, help us! Our friend is shot!’ Theydid not move. ‘Just bring him to the morgue,’ theysaid. Then, they just left. That is why we think maybethey knew about it and that maybe they were part ofthe operation. They just disappeared. They told us,‘Just go home!’ We did. The next day, a police officer31

● THE RIGHT NOT TO LOSE HOPEtold me, ‘I knew who the assassin was last night,a co-worker. Just keep quiet. Do not say a word.Nothing will happen to you.’”The accusing finger has been pointed at the DavaoDeath Squad (DDS), a vigilante group formed in the1980s that aims to rid Davao of criminal elementsthrough extra-legal means. Several accounts even linkpolice authorities and elective officials to the group,given their perceived inaction on the killings. Whileauthorities deny the involvements of vigilantes, theydo not discount the existence of ‘hired guns’.” 94Children killed in HondurasIrvin Agustín Mejía TorresIrvin was born on 28 September 1985 and was theson of Maria Elena Torres and Jose Agustín Mejía.He started primary school in the Minerva RuralSchool in the village of Dos Caminos, Villanueva,Cortes. When his father died, Doña Elena decidedto migrate to the Colonia Sinai, Sector RiveraHernández, with her four children.When Hurricane Mitch hit Honduras, the youngpeople involved in gangs in the Sector RiveraHernández joined in with the rescue operationstogether with their neighbours. Irvin was 12 years oldwhen he volunteered and this is how he became amember of the gang known as the Barrio 11 based inthe Colonia Sinai. The other gang members gave himthe nickname of ‘Mitch’, saying that it was thehurricane that had brought him into the gang.As a result of the work of the Committee for theRescue of Maras (COMREMA), a community-basedsupport group, in the sector, the Barrio 11 groupdisintegrated. Irvin found himself alone, as his motherhad to work. He was recruited by the Barrio Pobregang. The first thing he did was put a tattoo on hisright leg.After a time, COMREMA made contact with theBarrio Pobre gang and they offered alternativeopportunities to the members. COMREMA workedwith the technical support of a local NGO, JovenesHondurenos Adelante-Juntos Avancemos (JHA-JA)and had set up a silkscreen workshop. Irvin joined theworkshop and, in a short period of time, he decidedto leave the gang. He was by then 13 years old.Once he was involved in this process of recuperation,what he most wanted was to finish his primary schoollevel studies. So he applied for a scholarship as soonas he was able to get his birth certificate. He waseventually successful and was able to enroll in theMaria Amparo Ramirez School. He was in his finalyear of studies when he was murdered.Irvin also wanted to help his friends who were stillmembers of the gang, but he had a lot of difficultiesin doing so. He also found it very hard to find a job,so in the end he signed up as a volunteer in theParamedic Emergencies Squad for the MetropolitanArea of San Pedro Sula, where he continued to workuntil the day of his death.Despite all his efforts, he was permanently harassed.One day the police captured him and put a turtle inhis mouth, which bit his lips and, for a long time, hewalked around with swollen lips. Members of hisex-gang who attacked him and issued death threatsalso permanently pursued him. So did membersof other gangs and adults linked to communitysecurity groups.He was at home when a young woman named Suyapa,with whom Irvin had been going out, called roundand invited him to come to her mother’s house. It wasabout 9am. He agreed and went with her, only to bemurdered in a place called the ‘Cucarachas Curve’.He received two bullets to the head.MarcosOn 29 June 2005, Marcos was riding his bike inRivera Hernandez when a white Izuzu double-cabinpick-up truck with polarised windows and no licenseplate, identified by community members to be avehicle used by the local law enforcers, interceptedhim. He was asked for his identification and thebicycle registration documents. Marcos casually32

2 CHILDREN’S EXPERIENCES IN THE JUSTICE SYSTEM ●gave his documents to the official, but the officialdemanded that he show him his tattoos, and thenordered him to get into the pick-up and placed hisbicycle in the back of the truck.In the truck there were three police officers, dressed incamouflage – uniforms that the Cobra forces usuallywear. The driver was wearing a ski mask. From theinstant that he was forced into the car, Marcos wasforced to keep his head down so that he would notsee where they were taking him. They arrived at aneighbourhood called Cerrito Lindo, where otherbodies had been dumped in the past, and they forcedMarcos to get out. Only one of the soldiers got outand pushed Marcos into a ditch. Marcos rolled intothe ditch and as he rolled he heard shots being firedat him. He ran to the neighbourhood known as LaPlaneta, but no one would help him because he wastattooed. Finally a bus driver gave him a ride to RiveraHernandez where he sought help from the board ofdirectors of FUNDESERH (a local NGO) who helpedhim file a formal complaint.GermanOn 4 July 2005, German was riding his bike towardshis work in Rivera Hernandez when a group of policedriving a white Izuzu double-cabin pick-up truck withpolarised windows and no license plate interceptedhim and shot him. He died instantly. 95In the system: violence anddetentionWhile the period of arrest and interrogation is oftenone of the most dangerous for children, detentionbrings its own set of added dangers. Conditions indetention are usually overcrowded, often inhumaneand always traumatising.“There is acute crisis of space to sleep. I have got aseat, as I am relatively older in the jail. The earlierpahara (guard) gave me a ‘file’ (symbolic name fora place where one can sleep sideway), I gave him100 taka, in exchange he kept me in seat (whereone can sleep) for six days. Then I was pushed toa file again. As I complained, I was beaten. WhenI complained to the deputy, he changed the pahara.The new entrants in the jail have to stay in thebathroom files. If we do not give cigarette to thepahara, they beat us. There is no fan in our ward.We are 75/80 children in one ward. Severely hot,I cannot sleep at night. There is an acute crisis ofwater. We (children) do not get the space to take abath. Sometimes there are clashes over taking a bath.”(Alim, aged 13) 96Violations of international standards in relation tothe detention of children are rife, with fundamentalprinciples such as the total separation of minors fromadults continuing to be violated in a majority ofcountries, despite overwhelming evidence that thisinvariably exposes children to violence, includingsexual abuse by adults. Even where the conditions ofincarceration are in accordance with international law,and children are segregated from adults and providedwith educational and recreational facilities, detentionas a last resort and for the shortest appropriate time israrely practised anywhere in the world. That such ahigh percentage of children in detention are awaitingtrial and that the overwhelming majority of childrenin jail are accused of non-serious and non-violentoffences points to a fundamental flaw in the wayjuvenile justice is administered. The screening processand the required determination that a particular childis a genuine risk to the security of others or seriouslyat risk of flight while awaiting trial are usually totallynon-existent or flawed, resulting in detention onremand being the rule rather than the exception.In Davao, for example, the research noted that “All the67 cases of children detained at the Juvenile WelfareUnit as of February 2003 were being handled by PAO(Public Attorney’s Office) lawyers; almost all cases(53 out of 67 cases) are actually bailable. Almost all(60 out of 67) are still undergoing trial, while only alittle more than ten per cent have been convicted orare waiting for transfer to serve their suspendedsentences. Many have not been convicted, yet theyalready consider themselves convicts since they arealready in jail.” 9733

● THE RIGHT NOT TO LOSE HOPEAs a result of the failure to enforce the principle thatdetention should be a last resort, huge numbers ofchildren accused of crimes are exposed to a prisonenvironment where violence by prison officers or byother inmates is a very real possibility.Violence in the prison system is not only an issuein countries where the system is under-resourced orover-stretched beyond its capacity, even though moreextreme and systemic forms of violence can often befound in these institutions. It is a recurrent feature ofall penal systems, no matter how well resourced, asinformation on the UK penal system demonstrates:“Young offender institutions experience the highestlevels of assaults among prisoners, staff and others ofall prisons in England and Wales […] the worst beingAshfield” with an assault rate of 74 per cent. “Controland restraint (the use of pain-reliant system of physicalrestraint by staff) was used 3,615 times on childrenin prison between April 2000 and January 2002,resulting in recorded injuries to 296 juveniles, fiveof whom required hospital treatment for fracturesor suspected fractures.” 98Beyond their exposure to violence, children whoare detained are further removed from any supportmechanisms that they may have had and furtherisolated from the socialising influence of theircommunities. Instead, they are de-socialised andlearn to survive only by the rules of coercion andpower that are evident in the prison environment.Any socialisation that does take place is often at thehands of other more experienced inmates, whichonly serves to ensure the further criminalisationof the child.Alarming levels of self-harm among children who aredetained point to the pervasive impact of isolation andincarceration on the well-being of children who are, inmost cases, also dealing with the results of abuse andneglect. In the USA, 110 youth suicides are reportedto have occurred nationwide in juvenile facilitiesfrom 1995 to 1999 alone. 99 In the UK, the HowardLeague reports that there were 17 suicides of childrenin prison between 1995 and 2004 100 and 28 deaths ofchildren in penal custody in total since 1990. 101Thus violence against children in the justice systemis not only the result of violent acts by agents of thesystem but also the result of their omissions, whichlead to the inappropriate use of detention againstchildren. 102The punitive nature of criminal justice systems canalso result in direct violence against children throughtheir sentencing provisions. Some criminal justicesystems continue to legally condone forms ofviolence against children as sentences of the court,such as the use of capital punishment, physicalpunishment including flogging and caning, and theuse of life imprisonment without the possibility ofrelease, despite these being completely prohibitedas far as children are concerned under internationallaw. 103 Others condemn children to prohibitiveincarceration measures that have been shown to beboth ineffective and damaging to children’s abilityto rehabilitate and regain their place as importantmembers of their communities and societies.The use of community-based sentencing remainsthe exception rather than the rule, and is rarelyavailable in systems that continue to promoteincarceration, particularly in a context where it hasbecome ‘big business’ with the increased privatisationof the security sector. As a result, the financing ofever bigger institutions for children is prioritised,even in a context where it cannot be justified byincreasing youth offending patterns and wherecommunity-based alternatives have been provedto be not only more effective but also muchcheaper. 104 In many parts of the world, prisonpopulations are growing. 105In the UK, the number of children in prison hasmore than doubled since 1993, despite a decline inthe number of children convicted or cautioned foroffences. In the USA, between 1993 and 1999, therewas a 43 per cent increase in the number of childrenbeing confined in residential correction institutions,while for the same period there was a 33 per centdecline in the juvenile arrest rate for violent offences. 106This is despite the fact that incarceration of youngpeople has been shown to result in the worst rates ofreoffending. “Rates of reoffending among juvenile34

2 CHILDREN’S EXPERIENCES IN THE JUSTICE SYSTEM ●offenders are cause for concern for those involved incriminal justice agencies around the world. In NorthAmerica, for example, the recidivism rate for youngpeople leaving custody has been reported to be as highas 96 per cent (Lewis et al, 1994). In another study,88 per cent of British males between 14 and 16 yearsreoffended within two years of release from custody(Hagell, 2002).” 107The majority of juvenile justice funding continues togo towards financing incarceration despite evidencethat it does not work, that it is far more costly thancommunity-based alternatives in the long term interms of personal, social and economic costs, and thatit exposes children to unacceptable risks of violenceand alienation. In Maryland, USA, for example,it was noted that “only $36 million of the state’s$136 million budget for juvenile justice in 1999(27 per cent) went to supervising or serving the90 per cent of youthful offenders not sentenced to anout-of-home placement.” 108 In Kenya, as the examplein Chapter 4 shows, two-thirds of the Departmentof Children’s Services’ budget is spent on managingten remand homes, 12 ‘approved schools’ and onechildren’s home, reflecting the strong bias towardsfinancing the institutionalisation of children.It is time for a determined shift in policy and fundingin relation to children’s justice that prioritisesdecriminalisation, community-level diversion andalternatives to detention. The continued prioritygiven to a system of justice that is based on seriousoffending patterns while the majority of crimescommitted by children are of a non-serious naturewill simply not yield results, either for children orfor their communities.The urgent need for such a shift is increasinglyrecognised by policy-makers in a number of countries,even those in economic transition where rising crimeis a cause for concern, as in Eastern Europe andCentral Asia: “[…] among the 27 million youthunder age 18 in the region, there are about ahalf-million new cases of adolescents in conflict withthe law every year. That only a few thousand youngpeople commit major violent crimes shows clearlythat the reform of juvenile justice systems in thevast area of the less serious offences would offerbroad benefits.” 109Unless determined efforts are made to turn to a systemthat will provide real and effective justice to childrenin conflict with the law, Mae Fe Ancheta-Templa’sreflection in her research in the Philippines that“ironically, the fate of children deemed in conflictwith the law is either brutal ‘civilian (in)justice’ orsubjection to the harsh adult criminal justice system”,will sadly continue to be true for generations ofthese children. 110Notes88For examples see: Amnesty International (2004) Pakistan: Deathpenalty for juveniles reintroduced, AI Index: ASA 33/025/2004;Amnesty International (2000) Brazil: A waste of lives – FEBEMJuvenile Detention Centres, Sao Paulo, AI Index: AMR19/014/2000; Amnesty International, (2000) Pakistan: Denial ofbasic rights for child prisoners, AI Index: ASA 33/011/2003; HumanRights Watch (2004) “Real Dungeons”: Juvenile detention in theState of Rio de Janeiro; Human Rights Watch (2003) Charged withBeing Children: Egyptian police abuse of children in need ofprotection; Human Rights Watch (1999) “Nobody’s Children”:Jamaican children in police detention and government institutions;Human Rights Watch (1996) Police Abuse and Killings of StreetChildren in India; Human Rights Watch (1996) Children ofBulgaria: Police violence and arbitrary confinement; OMCT (2004)Children Deprived of their Liberty in Uruguay: With or withoutrights?; OMCT (2001) The Treatment of Detained PalestinianChildren by the Israeli Authorities89Ancheta-Templa (2004) p.4390Munsch et al (2004) p.2091Ancheta-Templa (2004) p.4492Munsch et al (2004) p.2393For other examples see: Human Rights Watch (1994) GenerationUnder Fire: Children and violence in Colombia; Human RightsWatch (1996) Police Abuse and Killings of Street Children in India;Jubilee Action (2004) Report on the Killing of Street Children inBrazil; and see also http://www.stopkillingchildren.com/index.htm35

● THE RIGHT NOT TO LOSE HOPE94Taken from Ancheta-Templa (2004) pp.68–7095Case studies from JHA–JA, Save the Children UK, Honduras,200596Save the Children UK (2001) p.1997Ancheta-Templa (2004) p.5498UK Parliament – Joint Committee on Human Rights. TenthReport. (2003) para. 5099Advocasey (2003) p.36100The figures when including young people under 21 years old areeven starker. In 2003, 13 young people killed themselves in prison,in 2002 16 killed themselves, in 2001 there were 15 suicides, andin 2000 there were 18. “Between January 1998 and January 2002,there were 1,111 reported incidents of self-harm by children inyoung offender institutions.” Joint Committee on Human Rights– Tenth Report (2003), UK Parliament, para 47101http://www.howardleague.org/press/2005/050705.pdf. See alsohttp://www.crimeinfo.org.uk Fact Sheet: Young people in prison102In addition to the routine use of deprivation of liberty, manysystems continue to condone tacitly the arbitrary detention ofchildren without warrant or after their warrant has expired andoften for prolonged periods of time. For a particularly appallingexample of this, see the case of Nazrul Islam in Bangladesh,who spent 12 years in jail from the age of nine, even though hissentence was seven years. (Save the Children UK, 2001, p.1)103See in particular Article 37 of the UNCRC which prohibits theuse of torture or other cruel, inhuman or degrading treatmentor punishment, the imposition of capital punishment orlife imprisonment without possibility of release for offencescommitted by persons under 18 years of age; See Article 6(5) ofthe International Covenant on Civil and Political Rights, UNRules of the Protection of Juveniles Deprived of their Liberty(JDL) Rules 63–71104For good examples of cost analysis and private sectorinvolvement in the building of prison facilities, see AdvocaseyVolume 5, number 1, Spring 2003. Hip-Hop vs Lock-up: youthjoin the battle to slow California’s juggernaut of juvenile jailbuilding105The World Prison Population List shows that total prisonpopulations have risen in 73 per cent of these countries (in 64 percent of countries in Africa, 79 per cent in the Americas, 88 percent in Asia, 69 per cent in Europe and 69 per cent in Oceania).http://www.kcl.ac.uk/depsta/rel/icps/world-prison-population-list-2005.pdf (Sixth Edition) See also Walmsley and Tkachuk (2001)106Juvenile Justice at a crossroads. Advocasey (2003)107Current trends in the rehabilitation of juvenile offenders. No.284.The Australian Institute of Criminology. http://www.aic.gov.au/publications/tandi2/tandi284t.html. Statistics from seven juvenilecorrections facilities in the USA published in Advocasey (2003)showed recidivism rates ranging from 42 per cent to 63 per cent.See also http://www.crimeinfo.org.uk Fact Sheet: Young people inprison; “Reoffending rates for children leaving custody in Englandand Wales stand at 72 per cent on average and as high as 90 percent in some areas.” ‘Where’s Kilbrandon Now?’(2003): NCHScotland p.12. www.nch.org.uk/kilbrandonnow108How serious is America…? http://www.csdp.org/research/r234.pdf – See also: http://www.rethinking.org.uk/facts/rethink/cost.html. In the UK it is reported that “the Home Office spentroughly £2.3 billion on prisons in 2001–2002, compared to some£900 million on ‘probation and criminal policy’. The averageannual unit cost of a prison place is more than 12 times as muchas the cost of a probation or community service order”109UNICEF (2000) p.102110Ancheta-Templa (2004) p.236

Case study 3: Leo’s story (Mozambique)Leo is a 14-year-old boy. He was arrested for vagrancyand was interviewed in Nampula Provincial Prison.I come from Erati, Alua Locality. I lived there with myparents. My parents are unemployed. When I was inErati, I used to help my mother on the farm, and thenI went to school; afterwards I used to play with myfriends. In 2002 I went to live in Namialo with my aunt.Well,... I was in Namialo. One day, I went to the farm.When I came back from the farm I went to eat lunch;later, after dinnertime, I went to watch video. When I leftto go home they captured me. Since I didn’t know thatit was the authorities, I answered, ‘I am coming homefrom watching the video’. From there, they took me tothe command.Then, after spending ten days at thecommand, they transferred me to Meconta and fromthere to Nampula prison. I was arrested because I didn’thave my Identity Card.That was on 14 October 2002.It is already four months ago.I didn’t have any documents at that time, but I hadmy birth certificate at home. I was arrested at night.We were three people; the others are there in the cell.This is the first time that I have been arrested… I wasarrested because my friends were already known to theauthorities.When I was arrested I wasn’t going to school. I left schoolin 2001. I didn’t know that I was committing a crime.Because I was leaving the video place with my friends,I didn’t know that they were thieves. I don’t know ifI am guilty. But there at the court, I heard the Judgecomplimenting the police officer because they capturedus while we were going home. I am not sorry, becauseI don’t know what I have done.The life here in prison is very difficult. It is hard, becauseit is not easy for a person to live. We who are new heresuffer a lot. We sleep badly. Usually, you don’t sleep –you fall asleep sitting down until the morning. Becausethe prison is overcrowded. We eat badly. We are suffering,we’re beaten with a belt, the boss of the discipline beatsus a lot.They sleep with us.The cell bosses force usto sleep with them (to have sexual intercourse), theyorder us to remove the shorts and they put their sexin the anus. When we refuse, they punish us, they beatus. Life here is very difficult. I think a lot about home.The situation here in prison gets worse because of thesuffering, of the beating, of sleeping badly.Yes, here in prison there are children, in Cell Five and inCell Four there are children. I know that there are childrenbecause I see them every day.Yes.Two friends.They werearrested on the same day as me, we were walkingtogether that night.For me, my friends are to blame, because I didn’t knowthat they were thieves. Because if I knew, I would havetaken another road alone.I met them the same day that I was arrested, becausewe were leaving the same video place and were capturedtogether and were transferred to Meconta and heretogether. I have four friends outside who have never beenarrested; they used to play with me. I don’t know if oneday they will be arrested.I will be released on 14 March, because I came on14 October. I have already been tried and convicted.They gave me a six-month sentence. Some people whoare arrested are guilty; other people are not guilty.Thosewho watch videos and walk at night are captured by thepolice. But those who steal go to jail, leave prison, stealagain and return to prison. For the police they are guilty,because they steal because they want to.I am afraid of prison, yes; because I saw the sufferinghere in prison.Those bosses take advantage of us whoare children. Here in prison if a person has money, it istaken from him in the cell, he is beaten up.They don’twant to see us cheerful. We get food, we have to eatthere and then. We cannot go drink water we just staythere (quiet). If you leave you are beaten up.Then whenyou go to sleep, you cannot sleep with your shirt orshorts, only with underwear or naked.Then they takeadvantage (rape), you cannot scream.My family cannot come visit me, because here whereI am is very far, they don’t have money. Before I wascontinued overleaf37

continued from previous pagearrested, they used to tell me to be careful, not to walkwith thieves, to be careful not to walk at night becauseone day I would be captured. When I am released, theywill be happy, because I will be outside jail and awayfrom the suffering.Yes they worry about me, becausethey used to visit me there in Meconta. Only here, theydon’t visit me because it is very far. My friend used tocome visit me.Those (friends) who did me wrong, I won’t play withthem again.The others who didn’t do anything wrong tome, I will continue playing with them.Yes, (the neighbours)like me, because they played with me every day. And mymother helped them and they also helped my mother.Here in prison, I don’t like anything. If I went home, yesI would like that, because here in prison I don’t seeanything that I can like.There at home, I liked to playwith my friends and also help my mother and walk inthe neighbourhood. What I didn’t like was to do badthings, to go about uncontrolled.I would like to go to school, to play with my friends, tohelp my mother on the farm, go watch soccer. I want tolook for a job, to work, to get my money and buy my ownthings.The life that I would like to lead is not this prisonlife. I would like to be home to play with my parents, mymother, my sisters and my brothers. We are six siblings.The best moment for me was when I was home, whenI lived with my aunt.The worst moment of my life is thishere of being in prison. I am afraid of dying here.No... I don’t know if a child can be arrested, who knowsthat is the government.The only problem that I have is being in prison. Myparents are farmers but we are united, we are happy.I think that there should be ways of solving this problemof lack of documents, walking at night.The problem thatI have is not a problem that should take me to prisonbecause I didn’t steal, I didn’t kill anybody. 111111Case study taken from Save the Children Norway (2003)Mozambique Report.38

Part IICommunity-basedresponses

3 Ensuring justice for children“Rights violations remain commonplace in juvenilecourts and corrections systems today. Effective legalrepresentation is scarce. Conditions inside juvenilecorrections facilities are often substandard – andoccasionally barbaric. And at every level of thejuvenile justice system, ethnic and racial minoritiesare treated more harshly than white youth.” 112It might be assumed that the issues faced by childrenin conflict with the law identified in this report mainlyoccur in developing countries that are struggling to setup effective and well-resourced justice systems. Theabove analysis of the USA juvenile justice system bythe Annie E. Casey foundation, together with the raftof reports on the failures of the justice systems in theUSA, the UK and many other well-developed andresourced countries, point firmly to the contrary. 113The reality is that criminal justice systems all overthe world are failing children. The routine use ofdetention pending trial even for petty non-violentoffenders, the incidence of violence at the hands ofpolice and prison officials as well as at the hands ofother inmates, appalling detention conditions, andthe increasing reliance on adult courts and systems toprosecute young people who offend, as is the currentpractice in the USA and the UK, are unfortunatelycurrent in both developed and developing countries.This is true, moreover, despite the evidence of therisk of exposure to serious levels of violence againstchildren within those systems, as well as evidencethat they are singularly failing not only the individualboy or girl, but also their communities, as theincidence of children’s recidivism upon confinementis demonstrated to be much higher. In addition,there is increasing evidence that these systems arealso failing the taxpayer, as this reliance on custodialoptions has been shown in many instances to befar more expensive in the longer term than thecommunity-based options. 114A focus on prevention, community-based diversionand alternatives to detention is equally crucial incountries where the administration of justice is flawedand in countries where the system is functioning.Indeed, it can even be argued that developing aneffective diversionary juvenile justice system is animportant step towards ensuring a fully functioningand effective criminal justice system. It can free thesystem and its resources from a backlog of pettyoffending by children that is only made worse by theuse of incarceration, as this is shown to usually leadto more serious offending by young people. Instead,the formal criminal system could focus on seriouscriminal offences.There is a worrying tendency at the forefront of manyjuvenile justice discussions to think that if the systemitself could only be made more child-friendly, (“paintthe prisons pink”), this would in turn make it betterfor children. This is an understandable response to theviolent and appalling conditions faced by the majorityof children in conflict with the law. Yet, the realityis that while a fully functioning and child-friendlycriminal justice system would be a measurableachievement in terms of justice for children, it wouldstill fail to address the root causes of offending, itwould still stigmatise and result in inappropriatecriminalisation and it would rarely provide the supportand follow-up within the community that childrenrequire in order to move away from offending andbecome fully participating and engaged citizens.Instead, to develop a child-centred justice system wemust develop a specialised system that recognises the41

● THE RIGHT NOT TO LOSE HOPEreality of children’s experiences and the challenges theyface in their development and in their relationships.It must aim to address the reasons behind a child’soffending behaviour, while at the same time focusingon supporting that child within his or her communityand family and providing him or her with the toolsfor making different and better choices.This vision of justice for children is not new.International standards on juvenile justice andthe UN Convention on the Rights of the Childhave long recognised what practitioners have knownfrom experience: that children should, as far aspossible, be kept out of the formal justice system,that diversion away from judicial proceedings shouldbe sought whenever possible, 115 and that a specialisedand separate child-centred justice system shouldbe established with the overall aim of the child’sreintegration into his or her community wherethey will be empowered to “assume a constructiverole in society”. 116The Convention has set clear restrictions on thedeprivation of liberty of children, which should benot only in accordance with the law but used “as ameasure of last resort and for the shortest appropriateperiod of time”. 117 It has demanded not only thatchildren who are in conflict with the law be treatedwith full respect for their human rights but thatthe way they are treated is “consistent with thepromotion of the child’s sense of dignity and worth”. 118One other forgotten aspect of international principlesabout the administration of juvenile justice is that achild in conflict with the law should be treated in amanner “which reinforces the child’s respect for thehuman rights and fundamental freedoms of others”. 119Behind this important principle lies the reality thatthe way a child is treated will have a far-reachingimpact on their understanding about the importanceof their rights and responsibilities towards others.In view of the widespread use of violence againstchildren in the justice system, it is difficult to seehow any of these children could take with themanything other than a realisation that they notonly have no rights but that responsibility is alsoa relative concept.The reality of how children are treated when theycome into conflict with the law is, as we have seen,a long way from the vision enshrined in the UNConvention on the Rights of the Child. Eventhough prevention and diversion strategies havebeen developed in a number of countries and canbe seen to be working, most children in conflictwith the law remain within the formal criminaljustice system. Diversionary measures are seen asthe ‘icing on the cake’, isolated initiatives developedusually through the goodwill of some justicepractitioners who are fed up with seeing justicefailing children. They remain appended, like anafter-thought, on a badly functioning system thatcontinues to deal with the majority of cases. Thereis a growing body of knowledge about what worksin prevention, diversion and reintegration andthese models and strategies should be shared,tested, adapted and scaled up when shown towork. They should be adopted as national policies,enshrined in laws and provided with sustainedand appropriate funding. They should be atthe forefront of establishing a child-centredjustice system.Chapter 4 of this report offers examples of suchmodels developed with partners to ensure thatchildren in conflict with the law not only receivejustice but are also better protected and supported tomake better choices for themselves. They representpragmatic and often creative responses to put intopractice the principles of international law onjuvenile justice, often in contexts where the justiceand social systems are under huge pressures in termsof resources and capacity. They are not presentedas solutions to everything and for every context.Challenges as well as successes have been included.Learning what works and what does not is key todeveloping appropriate and effective responses tochildren coming into conflict with the law. Primarily,they are good illustrations of an approach to justice42

3 ENSURING JUSTICE FOR CHILDREN ●for children that is focused on the individual boy orgirl, not in isolation but as a member of a family, acommunity and a society. They recognise that justicewill only succeed when a genuine change takesplace, not only within the child but in that child’srelationships and opportunities within his orher world. “It is quite normal to expect that ifresocialisation and reintegration are the objectives ofthe system then the process of resocialisation andreintegration itself has to be based within the structurein which the offender is to be reintegrated. Thereforeit logically follows that it is the community’s primaryresponsibility to carry out these functions.” 120Supporting children who offend in the communitythrough diversion or community sentencing isneither the ‘easy option’ nor the ‘soft option’ that itis sometimes portrayed as, either for the childrenthemselves or their communities. It requires fromchildren a much more complicated process ofintrospection and facing up to the real and personalconsequences of their offences. It involves anacknowledgement of responsibility that is muchmore personal than a formal admission of guilt ina courtroom full of people, the majority of whomthey do not know and are unlikely to meet again.Some children, particularly those who have offendedrepeatedly, may find it easier in the detached andformal context of the courtroom where theproceedings unfold like a TV drama and where theyare a minor bit player, rather than face to face withtheir accuser, parents and neighbours.From the communities, it requires a much greaterlevel of commitment and involvement at an individuallevel and it is generally more intensive, particularlyin relation to people’s time, including parents,community workers and leaders, police officers,social and community workers. Because it seeks tounderstand the causes of the problem and initiate realchange, including behavioural change and a changein the relationships of the child with his or herenvironment, family and peers, it demands fromthem particular skills and competencies. All of thisrequires sustained and significant resources andcapacity-building, without which it will fail. It canbe easily discredited as a more ‘risky’ option thanusing the relatively well recognised and betterresourced path of incarceration. In addition, becauseit takes place in communities that are not neutralplaces but reflect the local power dynamics and localculture and socio-economic contexts, these alternativesrequire a strong framework and understanding ofrights under which they must operate, not only therights of children, but of principles of due processand non-discrimination. To succeed, they require amajor shift of approach and of policy in relation tochildren’s justice.The overarching aims of this approach to children’sjustice are:• to prevent children coming into conflict with thelaw in the first place, including by preventingunnecessary criminalisation• to divert the majority of petty offenders awayfrom the formal justice system throughcommunity-based diversion mechanisms• to ensure child-centred and appropriate responsesby the justice system within a specialised systemthat focuses primarily on addressing the causesbehind the offending behaviour and supportingthe child’s rehabilitation and reintegration withinhis or her community and family• to ensure that community-based alternatives todetention are available and used by the justicesystem as the principal and primary responseincluding, whenever possible, cases where childrenhave committed serious offences• to support children at risk of being in conflictwith the law and those who already are byenabling them to develop the tools they needto make better choices, away from offendingbehaviour, including through education,livelihood opportunities and participationin their communities.This approach not only provides a better, moreeffective way of addressing the challenges faced by43

● THE RIGHT NOT TO LOSE HOPECommunity-based responses to serious offending by childrenWhile the overwhelming majority of children whocome into conflict with the law commit pettynon-violent offences, a small percentage of childrendo commit serious and violent crimes. Consideringthe context of violence and neglect in the lives ofmany of these children, this is not surprising, butit does mean that these children can pose a risk totheir communities and often to themselves.Yet,the evidence concerning these children is alsooverwhelming: incarceration and a criminal justiceresponse that is focused solely on punishment anddeprivation of their liberty simply does not work.On the other hand, justice responses that are childfocusedand provide intensive community-basedsupport, addressing the root causes of their offending,do work.The number of these initiatives is growingall over the world yet, despite real evidence of theireffectiveness, they remain ad hoc, small scale, underfundedand under-resourced initiatives. Meanwhile,reliance on long-term incarceration continues to bethe norm despite overwhelming evidence that it isineffective and can actually make the offending worse.While the good practice examples in this report focusmainly on petty offenders, community-based responsescan and should be developed to deal with childrenwho commit serious offences.Important examples of such programmes include thework developed by the Boys’ Clinic, part of Save theChildren Sweden’s Crisis Centre for Children andYoung People in Sweden.The clinic establishedintensive individualised treatment programmes withchildren (average age just over 14 years) who wereserious sexual offenders, including those who hadcommitted rape and sexual molestations.The workat the clinic demonstrated that “a compassionate yetfirm approach to the work can be successful and cansupport young people who are destined for a life ofdestruction and imprisonment to find a different routefor themselves”. (For a description of the work andcase studies, see Nyman, Risberg and Svensson, 2001.)Other examples of effective community-basedresponses to children and young people who havecommitted serious violent offences, includingalternatives to incarceration, are highlighted by theAnnie E. Casey Foundation in the USA:“Since 1996, Delbert Elliott, director of theCentre for the Study and Prevention of Violencein Colorado, has led the national ‘blueprints forviolence prevention’ project – identifying andsupporting the replication of program modelswith proven success in preventing youth crime.Thus far, Elliott has found three models thatwork successfully with serious youth offenders.All three focus on the family, and none involvesincarceration – even for youth with lengthyoffending histories.Two of the models – FunctionalFamily Therapy and Multisystemic Therapy – involveintensive counselling to help youth and theirfamilies to identify and reverse the dynamics thatpropel the young person toward crime.The thirdmodel, Multidimensional Treatment Foster Care,combines short-term, therapeutic foster carefor the youth with intensive counselling for thenatural family, followed by rapid reunificationand ongoing support.All three models have been evaluated inmultiple scientific trials, and youth in all threehave demonstrated far lower re-offending ratesthan comparable youth assigned to conventionaljuvenile justice or mental health services. Becausethey reduce the costs of future incarcerationand cost less to operate than traditionalprograms, all three are also highly cost-effective.A cost–benefit analysis by the Washington StateInstitute for Public Policy found that the threemodels ultimately save taxpayers $6.85, $8.38,and $14.07, respectively, for every dollar spentto deliver services.”(Advocasey, 2003, p.17)44

3 ENSURING JUSTICE FOR CHILDREN ●these children. It also offers important and timelystrategies to prevent boys and girls in conflict with thelaw from being exposed to the risk of further violenceand criminalisation as well as victimisation within thejustice system. The examples of good practice thatfollow illustrate interventions at the different stagesof the process when children come into conflictwith the law where they can have an impact on theoutcomes of that particular boy or girl’s encounterwith the justice system.They are presented here to demonstrate that the shifttowards a justice for children that is child-centred andcommunity-based is not only possible but shouldbecome the norm, and that reliance on formal justicesystems that are punitive and based on incarceration isnot only harming children, but also their societies andcommunities in the long term.Notes112Advocasey (2003) p.14113Amnesty International (2002); Human Rights Watch (1999);OMCT (2002)114See Advocasey (2003) pp.9-11. See alsohttp://www.rethinking.org.uk/facts/rethink/cost.html: ‘What doesit all cost?’115UNCRC Article 40(3); Minimum Rule 11 of the UnitedNations Standard Minimum Rules for the Administration ofJuvenile Justice (The Beijing Rules) 1985116UNCRC Article 40(1) and (3)117UNCRC Article 37(b)118UNCRC Article 40(1)119UNCRC Article 40(1)120Findlay and Zvekić (1988) p.28945

Case study 4: Manuel’s story (the Philippines)At age 15 in 2001, Manuel dropped out of first yearat the Don Carlos A. Go Thong Memorial HighSchool, a public high school in Barangay Duljo-Fatimain Cebu City. His family was then in a very tightsituation and his parents could no longer affordto finance his studies.His mother said they tried their best to send himto school but Manuel often dropped out of school.Eventually, his father did not want to send him toschool anymore. Manuel is disheartened by hisparents’ inability to provide money for his expensesin school. Manuel explained that without money, hecould not comply with the required school projects.A school project usually costs around Php200(US$3.66) and not having this meant failing a subject.Even if the Don Carlos Go Thong Memorial HighSchool is a public high school, there are still somefees that parents have to pay for the enrolment oftheir children.Family conditionsBorn on 4 December 1986, Manuel is the third offive children, two of whom are married and oneeloped.Three of the children remained with thecouple but two of them actually do not sleep intheir parents’ house.Manuel’s family survives on his father’s meagre incomeof Php100 (US$1.83) a day from selling spices atthe Carbon Market. Manuel’s father consigns (angkat)goods from various traders and sells these tocustomers. At other times, he does carpentry jobs inthe neighbourhood and earns a maximum of Php200(US$3.66) a day. Gigi is a stay-at-home wife – sheattends to the children and does all the houseworksuch as cooking, cleaning and washing the laundry.Stretching a minimal budget is a very difficult task.Manuel’s mother explained that her husband’s incomeis good only for basic subsistence. His additionalincome from his carpentry jobs could barely lastfor a week. If he gets lucky and earns big duringthe week, the money is usually used to pay off thefamily’s loans.This means always cutting down onthe budget for food. As carpentry jobs are irregular,the family goes hungry most of the time. Manuel’smother admitted that food is very scarce in thefamily. “Tagsa ra mi mokaon sa usa ka adlaw (We eatonly once a day).” Without any savings, the coupleoften resorts to asking for help from relatively stablerelatives whenever one of the family membersgets sick.Fire hit Barangay Ermita for the second time on28 April 2002.The family’s home at the second floorof a two-storey house that is owned by a relative wasburned down during that incident. At the moment,Manuel’s family is staying with his father’s brother inErmita Proper because the couple has no resourcesto construct a new one. Manuel’s parents built amakeshift room beside the house of Manuel’s uncle.His mother laments that the room is so small it couldnot accommodate all her children at one time. Hence,Manuel and his younger sister have to sleep in theirgrandmother’s house, which is quite a distance fromtheir makeshift abode, while the youngest sleeps withthe couple.The two practically live away from theirparents and so they could not check on themespecially at night. Manuel and his sister are free tomerrily wander around the streets till early dawnwith their respective peers.Street life and peer pressureManuel started going out with friends at age eight andconsidered it play. At 14, he began hanging out withpeers and eventually engaged in rugby-sniffing andother acts of misconduct.The first time he was invitedto sniff rugby, he refused but on the second time,he tried it out of curiosity. Manuel liked it and waseventually hooked on it.After quitting school, Manuel started to wanderaround a lot.Together with his peers who are also outof school, Manuel delights in wandering at night sniffing46

ugby or taking shabu when finances allow. Manueladmits to rugby-sniffing but says this is not frequent.Peer pressure is the main reason why he is into it.He said he was tempted by his peers.His mother recounts that Manuel used to be meek.He became different when he started hanging outwith bad company.They come to the house and invitehim to go out. She said she nags at them but Manuelis so hooked with his peers and their vices that heno longer listens to his parents. His father often getsangry with him and even beat him up once.When asked what he gets from being with his peers,Manuel became momentarily silent then he smiled andlaughed. What motivates these young people to sniffrugby is the “trip” or the high they get. “‘Trip-trip’ sad ba(just curious),” Manuel quipped. “Trip” is an old drugaddict jargon which means “to travel” mentally as aneffect of hallucinogens, stimulants or sedatives.Theword has now evolved to mean liking, gimmick, revelryor anything pleasurable, especially for the group.Often, such sessions are done along the seaside areaof Barangay Ermita.“There is ‘power’ in rugby-sniffing,” Manuel said,explaining that power is anything that comes intothe mind.The chemicals contained in rugby releasetoxic vapours or fumes, which when sniffed or inhaledcould induce various conditions ranging from slightstimulation or excitement to loss of consciousness,intoxication and eventually harming the centralnervous system.The immediate effects of thesechemicals are distortion of perception of time anddistance, aggressive behaviour or violence, confusionor disorientation, nausea and vomiting, hallucinationand illusions (Rilloma 2003:29). Aggressive behaviour,distortion of perception and hallucination morelikely constitute the rugby-abusers’ concept of the‘power’ they experience.Manuel and his peers indulge in at least onerugby-sniffing session a day and to completeone session, they need many doses. In BarangayErmita, rugby is sold in 12" x 7" plastic bags withapproximately one tablespoonful of the substancefor Php1 (US$0.02). According to Manuel, they needat least two to three plastic bags of rugby to acquiregood ‘power’.The evils of rugby,however, do not end there. Manuelsaid that he and his peers sniff rugby before going outto steal. During the day, Manuel and his peers spendmost of their time wandering inside the CarbonMarket. Often, they strike at the ukay-ukay (secondhandclothing) shops or at the fruit stands. “Moragkabuang lang god! (It is just for fun),” Manuel claimed.One of them poses as a dummy customer who paysfor whatever he gets, while the other one shoplifts.Another trick is to pay less than the price of the itemtaken. Stealing is their way of maintaining their vicebut Manuel never admitted to having stolen anythingby himself, despite the probing.Manuel’s peer group is composed of ten members,which includes a boy named Diego who was shotby an enemy in retaliation for their mauling of ayoung person in a disco. Manuel claimed his groupsplit up since then and other members moved toLapu-Lapu City.Offending, apprehension and detentionIn 2001, when Manuel was 15, he and his peers wereapprehended by the Barangay Tanods for violatingPD 1619 or the illegal use of volatile substances.Therewere 20 of them who were caught in a rugby session.Though they were mediated by the Children’s JusticeCommittee (CJC), they were locked in the barangayhall detention cell for five days. It was Manuel’s firstoffence and according to him, he wept inside thecell.They were not given food and had to beg theBarangay Tanod to release them.Yet, weeks aftertheir release, his peers returned to their vice. Manuelboasted that he no longer got caught afterwards.Other factors that drove Manuel to a life ofmisconduct were boredom and idleness. Withoutrecreational facilities in the community, young peopleare easily tempted to engage in vices and mischief.continued overleaf47

continued from previous pageSince Manuel’s family does not own a television,he goes to the next door neighbour to watch thetelevision. Most of his time is spent by simply hangingaround. Sometimes, Manuel spends time singing atthe videoke or gambling. At other times, he washeshis clothes.Enjoying the night with his peers, Manuel’s groupdeliberately annoys the roving Barangay Tanods byshouting at them, “Barangay Tanod pisot!” Pisot is thelocal term for uncircumcised, which is also used tomean cowardly. Manuel said they love to hang aroundat night, talking to each other.They purposely wait forthe curfew hour to strike and when it does they shoutat the roving Tanods, infuriate the poor fellows andmake them run after them.To the group, this is fun.Whenever they are caught, they resist and push theTanods away.One night in 2003, Manuel, together with four otherpeers, was again caught by the Tanods for violatingthe city curfew ordinance. Barangay Ermita stronglyenforces the city curfew ordinance because of therampant drug trade. Curfew hours start at 10pm andend at 5am the following day.They were locked anddetained for the night inside the barangay’s detentioncell.This was Manuel’s second offence.The apprehension was friendly and humane. As soonas they were caught, Manuel and his peers were heldby the hand. No one resisted.They were transportedby the Tanod’s mobile car to the barangay hall.Immediately, their cases were recorded in the blotter.They forced the Tanods to release them but the latterheld them tighter. Manuel said the group remainedcalm and no one cried.They were detained in the cell like packed sardines.Manuel said that it was so hot inside the cell theycould not sleep. Manuel’s mother was looking for himthat night when he did not show up at home. Whenshe found out that he was detained in the barangayhall, she brought him food. She was angry with herson but was happy about his imprisonment, saying itwas time to teach him a lesson.Diversion and remorseThe following morning, Manuel and his friends werereleased for mediation by the CJC. During themediation process, they promised not to reoffendwhile the CJC warned them not to commit anotheroffence lest they be detained again. In response,they promised to stay away from committing otheroffences and from reoffending. Manuel signed thecovenant form formalising his promises. He assertedthat his signing was an honest and faithful act.He was proud that he was no longer detainedafter this.Manuel continues to hang out with peers but nolonger mocks the barangay Tanods. He is now awarethat such an act is embarrassing. He realised thatmocking persons in authority would not do him anygood. He said he no longer sniffs rugby following hisdiversion but when probed further, he admitted todoing so at most once a month.Manuel argued that the mediation/diversion processhelped him. During the mediation, he was counselledby the CJC not to commit the same offence and waspardoned. Manuel’s case was so slight he was not evenmade to do community service. Nobody from amongthe CJC though was able to check on him or visit himafter the diversion process. Manuel showed remorsefor what he has done but he is faced again with hisold problem – idleness.Plans, dreams and ambitionsAt 17, Manuel is now planning to apply for work. Hethinks he can now be hired in a dried mango factorylike the one in Lapu-Lapu City for a daily wage ofPhp160 (US$2.93). He is also thinking of going back toschool if he finds financial support. “Kung paeskwelahonko, moeskwela ko (If I’m sent to school, I will go toschool).” Otherwise, he will go on working.He was reminded of CJC Member Marichu Matas’offer for educational assistance under the Back-to-School Program of FREELAVA. He actually wantedto know at the time of the interview if the offerstill stands. His mother supports his intention of48

e-enrolling so he can stay away from his peers.Manuel has already participated in FREELAVAactivities because he is being groomed to becomea peer educator/facilitator. He was recently invitedto a children’s summit, which he gladly accepted.According to him, several children in conflict withthe law shared stories about their struggle with vices.They had drama sessions as well as lectures. Manuelsaid he enjoyed the activity because many childrencame to participate. He said the activity helped himcope with his boredom.Manuel’s only dream is for his family to eat well,at least more often then their usual once-a-daymeal. He said he would be content even with a lowlyjob like being a bagger in a department store just toearn. After his diversion, Manuel worked as an errandboy for a neighbour in Barangay Ermita. He now earnsPhp100 to Php150 (US$1.83–2.74) but not on aregular basis.Lessons, realisations and challengesManuel learned many valuable lessons in life but thechange in him did not come easy. He seldom goes outwith his peers now. He is now aware of the effects ofrugby-sniffing to his brain. Manuel is proud to say thatnow he could say “No” to his friends. Whenever hisfriends indulge in rugby-sniffing, he just watches themand waits.More importantly, Manuel admitted his guilt aboutoffending. Based on the interview, he has realisedthat his actions were wrong and unjust. He hasseen his parents struggle to earn a living so theycould eat while he revels in vices. He realised thatit was wrong to spend what his parents gave himon rugby.Shame also manifested in Manuel’s words. When toldthat with the first two siblings in the family gettingmarried, he is now the eldest among the threeremaining siblings and should therefore be the mostresponsible, Manuel said such realisation is also thereason he now longs for a regular job. At the sametime, he is hopeful about the offer for educationalassistance from FREELAVA. Manuel knows that bygoing to school, a better future awaits him.Manuel recognises the benefits of the diversionprocess. Without it, he could have been detained inBBRC or in Operation Second Chance. Manuel nowwants to change. He has been good to the Tanodsand has been observing curfew hours. He realisedthat there is always uncertainty in the life of a childoffender. “Ambot lang kung unsa na kahay nahitabokung wala na (I have no idea what would havebecome of me without the diversion process).” Thechallenge Manuel currently faces is taking on theprocess of healing and eradicating the community’sstigma on CICL. While he did not hear adversarialstories about the diversion process around theneighbourhood, the fact remains that he has beenlabelled as a child offender who experienceddetention. “Ay napriso na bataa (That kid has beendetained)!”Wanting to effect change in his life, Manuel alsofaces the challenge of helping his 15-year-old youngersister to reform. His sister hangs out with male peers,drinks alcohol and is also into rugby-sniffing.Theirfather frequently beats her up because of her vices.Manuel once punched his younger sister after sherefused to go to bed one evening as it was alreadypast bedtime. She has no record of offences yet inthe barangay hall. 121121Source: Save the Children UK. (2005) Back on Track: Makingcommunity-based diversion work for children in conflict with the law.A documentation of FREELAVA’s experience in Cebu City, Philippines;pp 129–135.49

4 Good practice examples ofcommunity-based responses“The vision of justice isn’t about saving money or averting prison construction – andit is certainly not about being soft on crime. It is about making things right insteadof lamenting what’s wrong, cultivating strength rather than perpetuating failure.” 1221 HondurasA community-based model for the prevention of violence bysupporting gang members’ reintegration and rehabilitation inSan Pedro SulaSummaryThis community-based model of intervention tosupport gang members who want to withdraw fromtheir gangs in San Pedro Sula, Honduras, represents acommunity-wide attempt to support young peoplewho have been members of gangs to reintegratethemselves back into the community in a positiveway. The model seeks to address the extreme levels ofviolence prevalent in the community involving boththe gangs and the police in a context of acute securitybreakdown. This is a context where firearms are widelyavailable and adult criminal organisations struggle forturf and supremacy and recruit young people for theirillicit activities. The recent reform to Article 332 of theHonduran Penal Code makes membership of a gang acrime, whether or not the young person has engagedin any criminal activity. This has reinforced thestigmatisation of all young people who have beengang members as any young person with a gang tattoois treated as a possible suspect, whether or not theyhave been involved in a crime. This factor, togetherwith the extra-judicial killings of children and youngpeople by vigilantes and death squads that have beenlinked in a number of cases to police officials and the“code of honour” of the gangs themselves, have allmade it extremely difficult for children and youngpeople to break away from gang culture and build anew life for themselves in communities that supporttheir efforts. The model described here combines thecreation of livelihood and educational opportunitieswith the development of social and physical spacesfor these young people to identify the challenges theyface and participate in developing their own solutionsto them. The model has brought together keystakeholders in the community, including the youngpeople, by supporting them in their own organisation.Community leaders, including small business owners,the churches, and the community police, all worktogether to support the reintegration of gang memberswho want to leave their gangs and support otherchildren and young people at risk.50

4 GOOD PRACTICE EXAMPLES OF COMMUNITY-BASED RESPONSES ●BackgroundDuring the 1970s and 1980s, Nicaragua, El Salvadorand Guatemala were torn apart by bitter civil wars.Although Honduras did not experience the sameinternal conflict, it was used as the military base forthe US-backed anti-Sandinista forces, or “contras”.The Honduran Armed Forces grew in size andresources as a bulwark against the expansion ofcommunism and the number of arms in the countryincreased significantly. The whole region and thechildren born in it during this period were immersedin an environment of violent conflict. By the mid-1990s a certain fragile political peace had returnedto the region, with the change of government inNicaragua and the Peace Accords in El Salvador andGuatemala. However, the new context also broughtmass demobilisation, and the uncontrolled increase inthe circulation of arms in these countries. A declinein aid budgets coincided with the implementationof structural adjustment policies that negativelyaffected social spending and led to a steep rise inunemployment, which particularly affected schoolleavers and young people. The impact of HurricaneMitch worsened the situation for the poor and themarginalised even further. Increasing poverty in therural areas led to significant rural–urban internalmigration to the major towns as well as internationalmigration from Honduras to the United States. Thelack of economic opportunities meant that familylivelihoods were precarious and mainly supported byinvolvement in the informal sector, while migrationalso brought in its wake family disintegration and thebreakdown of traditional support structures. Duringthe 1990s, the US also began to deport Honduransback to their country, many of whom had criminalrecords and links into gangs in the US. As a resultof these and other factors, the crime rate increased.Robberies went up tenfold in Honduras between1996 and 2001.The law and juvenile offendingSince 1906, Honduras has had laws in place that limitchildren’s criminal responsibility and require reducedsentences for those aged under 21. The constitutionenshrines the principle that children should be dealtwith differently from adults. Currently the age ofcriminal responsibility is 12 years, and for those agedbetween 12 and 18 there are special courts andsome specialist children’s judges. The Children andAdolescents Code (1996) in many ways puts theUN Convention on the Rights of the Child into law.In addition, in 2001 the out-going Liberal PartyGovernment passed the Law for the Prevention,Rehabilitation and Social Reintegration of YoungPeople in Gangs. However, the new National PartyGovernment took a far harder line and gave limitedsupport to the law that has negatively affected itsimplementation. Far greater emphasis has been givento punitive approaches, with an emphasis on zerotolerance of crime and a war against delinquency.The government has identified gangs as a majorcause of insecurity, violence and crime.As a result, in August 2003 the reform of Article 332of the Honduran Penal Code came into force. Thisincreased the minimum and maximum sentences ongang leaders from between three and six years tobetween nine and twelve years, while for ordinarygang members it was increased to between six andnine years. Membership of a gang in itself gives thepolice the right to arrest any member, even when notinvolved in a crime, if another member has alreadybeen arrested. This law has resulted in mass arrests.The bearing of a gang tattoo seems often to havebeen sufficient evidence of complicity for the police,even when the young person has an identity cardstating they are on a rehabilitation programme.This effectively removes the right of association, aright contained in the constitution and the UNConvention on the Rights of the Child, and thus allgang members are automatically regarded as being inbreach of the law. Under-18s made up about 30 percent of all arrests made under Article 332 in the firstnine months after its reform (Harvey, 2005).51

● THE RIGHT NOT TO LOSE HOPECrime has increased in Honduras over the last tenyears for some of the reasons given above and there hasbeen an increase in crime rates for those aged under18. The percentage overall is relatively low, however,especially in view of the fact that this group representsabout 50 per cent of the total population. BetweenJanuary 1996 and May 1999, only 5.5 per cent of42,000 denunciations were against young people.In 1998, only 16 per cent of the 5,000 people caughtin the act of committing a crime were under 18 years.However, “The line between organised crime andjuvenile gangs is becoming increasingly blurredrecently. Frequently juvenile gangs are beingrecruited by criminal organisations to carry out illicitactivities such as trafficking in drugs and arms.”(Harvey, 2005)Honduran juvenile gangsIt was estimated in the 1990s that 1 in 25 CentralAmerican adolescents was a gang member orsympathiser. Gangs are not new to Honduras, butprior to the mid-1990s adolescent gangs were seen asbeing a relatively legitimate expression of adolescentinterests; they upheld some traditional values and werelocalised. After 1995 these gangs started to change,with the deportation of undocumented Honduranmigrants from the USA, especially California. Manyhad come under the influence of Los Angeles gangs,which were often linked with drug mafias and usedgangster methods of selected killings, productionof firearms and drug-trafficking. These gangs werenot about defending their home turf but wereexpansionist and had little respect for anycommunity values.Estimates of the numbers of gang members inHonduras vary significantly. At its highest, it isestimated that there may be as many as 489 gangswith about 30,000 adult and child members and60,000 sympathisers. There are two main gangs: MaraSalvatrucha (MS) and 18, as well as a range of smallergangs. In a study carried out by the Young ChristianAssociation and Save the Children UK in 2002, it wasfound that 77 per cent of gang members joined beforethey were 15 years old and that 12–17-year-olds makeup 65 per cent of all gang members, the remaining35 per cent being 18–45-year-olds. The gangs andthe process of joining them is, however, dynamic andrecently the indications are that the membership ofthe major gangs is increasingly made up of adults,albeit with histories of juvenile crime. Although it ispredominantly boys who join gangs, girls do also andare sometimes involved in extreme violence. Gang lifeis violent and under-18s are known to commit seriouscrimes, including murder. Juvenile gangs are oftenrecruited to commit crimes by adult criminalorganisations.“There are diverse reasons why children and youngpeople decide to join the gangs: the search foridentity; companionship; hedonism; for feelings ofpower; to obtain protection and support by beingpart of a group that other people fear; to obtainaccess to drugs; to make money easily; the lack ofother opportunities; and as a substitute for an oftendisintegrating family unit.”(Harvey, 2005)There is an alarming rate of extra-judicial killings ofchildren in Honduras. Research by Covenant Houseand Honduran Ombudsman Research give theExtra-judicial killings of children and young people in HondurasCategory Covenant House Research Honduran Ombudsman Research(12–23-year-olds)(12–25-year-olds)1998–May 2002 1998–Sept 2001Total deaths 1,211 1,137Deaths under 18 years 715 455(59%) (40%)52

4 GOOD PRACTICE EXAMPLES OF COMMUNITY-BASED RESPONSES ●figures for under-18-year-olds killed between 1998and May 2002 and between 1998 and September2001 as 715 and 455 respectively (see table). Thisrepresents 59 per cent and 40 per cent of all deathsby extra-judicial killings.Although about 55 per cent of the perpetrators havenot been identified, of those known to the policeabout 23 per cent were ‘ordinary people’, 14 per centwere gang members themselves and four per centwere law enforcement officials. Some of the killingsare thought to be by vigilante groups and deathsquads acting in liaison with the police. A study by theNational Commission of Human Rights found thatonly 34 per cent of those children killed had belongedto a gang, and that of those, many had left, havinggone through or been in the process of rehabilitation.A community-based model tosupport gang members who havedecided to leave their gang in SanPedro Sula (the largest municipalityin Honduras)The development of a new ‘community governance’approach to assist and support gang members whowish to leave the violent gang culture becamenecessary because of the failure of either detention orits alternatives to address effectively the phenomenonof the new violent gang sub-culture based on exclusiveloyalty to the gang and hierarchy. The systems set upby the Children and Adolescents Code were “notdesigned to deal with groups that have completelybroken with the prevailing social values system,that behave like a small regular army, are extremelyviolent, highly ideologised and disciplined to theirown hierarchy and for whom the place of internmentis a battle ground and whose stay there is a badgeof ‘honour’. In addition, experience has shown thatyou cannot prevent or rehabilitate gang membersin captivity.” 123Together with its partner organisations, Save theChildren UK set out to address the lack ofunderstanding and mechanisms to promote a positivecommunity response to the gang phenomenon, tosupport gang members who want to withdraw fromtheir gangs, to raise awareness among decision-makersand the public of the repression, criminalisation andmurder of gang and ex-gang members, and to stopthe killing of young people. It aimed to set up apermanent coalition of civil society organisations tointerface with government agencies in order to achievethis. Establishing a positive community responsehas involved many players; the main ones in thisintervention are:• A local NGO, Jovenes Hondurenos Adelante –Juntos Avancemos (Forward Honduran Youth –United We Advance), (JHA–JA), which hasspecialised in in-depth analysis of juvenile gangsand is the intellectual author of the model.JHA–JA directly supports education, vocationaltraining, employment opportunities and socialand psychosocial support programmes for gangmembers. It facilitates the development of youngpeople’s organisations and their integration withother community-based organisations, with theaim of both enabling the young people toreintegrate into society and rebuilding unity inthe community. It engages in municipal, nationaland international advocacy and research andprovides training for the community police.It provides technical support in the rehabilitationof ex-gang members in their own organisationcalled Generation X.• Another major actor is FUNDESERH, which grewout of the local community Pro-DevelopmentCommittee. It is a foundation set up by smallbusiness owners that works with NGOs,community leaders and young people in liaisonwith the community police for the prevention ofviolence in the community. They have contributedfunds to the community police to help themfunction more effectively, but have also assistedJHA–JA with premises for a metal workshop andtortilla factory and, with funds from Save theChildren UK, has equipped them and provideda full-time technician to help guide thedevelopment of production and sales.• The community police is a relatively newdepartment of the Honduran Preventive Police.Their role is to build positive relationships with53

● THE RIGHT NOT TO LOSE HOPEthe local community and to prevent – as distinctfrom investigate – criminal activity. Their role iscrucial in providing a secure environment in thecommunity and without their support the othercomponents of the model would be at considerablerisk of failing to make any impact.• Generation X is a youth-led organisation of over60 ex-gang members. It provides the friendshipand support network that the members once foundin the gangs and which was a key factor in theirinvolvement in them. It is the body through whichassistance is channelled to gang members who wishto withdraw from their gang and abstain fromviolence, other criminal activity and drug abuse.It provides them with a range of skills so thatthey can reintegrate themselves socially andeconomically back into society. The way in whichJHA–JA and the other players work together toprovide an enabling and empowering environmentfor Generation X is described below. Livelihoodsupport is given to Generation X members througha metal workshop for males and a tortilla factoryfor females.• The Catholic Church in the diocese has playeda key role in building public awareness at anational level of the importance of prevention,rehabilitation and reintegration, and both Catholicand Protestant churches give their support tothe project. Other key players include otherneighbourhood associations, health centres,and soccer league organisers.The positive interaction of all these players in anetwork of ‘community governance’ is crucial toensure the success of the model.JHA–JA does not have one blueprint to achieve gangmembers’ reintegration. The situation of the youngpeople and the communities they live in define what isfeasible. JHA–JA encourages a participative approachin which ex-gang members decide to work together tochange their lives. In Rivera Hernandez, for example,the young people prioritised metal working, tortillamaking and sporting activities and JHA–JA hasbuilt its intervention in response to their proposals.Members of Generation X have received leadershiptraining and this, in turn, motivated them to openanother office in Rivera Hernandez as well as indowntown Sula.There are five main stages that JHA–JA goes throughin assisting gang members to change their lifestyle:1. Investigative and networking actionJHA–JA sets out to understand the situation of theyoung gang member(s) who want to change,particularly by establishing a relationship with thegang through a trusted contact. If this is in a newgeographical area, then relationships will need to beestablished with the community leaders, police andnon-governmental and governmental organisations.It is essential for the success of the whole programmethat the community police are supportive. In orderto achieve this, JHA–JA has established good relationswith the community police hierarchy, has regularweekly or fortnightly meetings in project areas withthe community police, civil society organisationsand Generation X members, and has provided policetraining on the treatment of ex-gang members. As aresult of this interaction, the community police haveagreed to recognise a form of identification given toGeneration X members by JHA–JA so they are lesslikely to be harassed.2. Engagement with the leaders of gangsand reconciliation of gang-related conflictEngagement takes place with gang leaders to persuadethem that the programme does not constitute a threatagainst them but an opportunity for integration.When the threat of violence comes from rivalgroups, the integration of members of both groupsis negotiated. Different kinds of participation in theprogramme are offered to each gang but with the hopethat eventually they will feel it would be beneficial towork together. This negotiation with gang leaders is animportant step due to the code of honour that existsamong gang members: that if you leave or desertwithout authorisation you face death. For thosewho do not have permission to leave the gang, theirsituation can be very perilous and they may have tomove away entirely.54

4 GOOD PRACTICE EXAMPLES OF COMMUNITY-BASED RESPONSES ●3. Involvement in individualised and groupprogrammesIt is very difficult to break down the lack of trust andmake a young person reflect about the impact of theirassociation with the gang. Initial talks may take sometime, as it is necessary to discuss the young person’slife, the positive options the programme representsand the conditions of their involvement. The maincondition is to abstain from violent activity and drugabuse. It is also explained to them that help will beprovided, for example, through referral to a drugrehabilitation centre. A young person is given time toreflect on whether they wish to join the programme.JHA–JA still keeps in touch periodically with thosewho do not.Joining the programme does not necessarily meanthat the gang member has to abandon the gang.The aim is to open communication with the gangand to keep the support of its leaders. The mostsuccessful process is when the young people stimulateother young people and leaders to engage in theprogramme. This has led to the self-dissolution offive young people’s gangs.Once trust has been gained and the young personhas made a decision to join the programme, they areinvited to participate in different group programmes,including:• recreational therapy• the setting up and managing of vocational orskill centres• the setting up and managing of small localneighbourhood businesses• gang reconciliation (between distinct gangs as ameans of violence prevention)• leadership and advocacy training• the development of an autonomous organisation,eg, Generation X.Once integrated in the programme, they are invited toparticipate in individualised programmes, including:• psychosocial counselling• support in the search for employment• reintegration into their family• health support• detox from drugs – this is done by placing them inexisting programmes.They go through a trial period of two months ormore, until it is clear that they have left violent andcriminal activities. If they face threats of violence,JHA–JA works with them and the other actors inthe programme to identify protective measures.4. Follow-up with familiesFamily reintegration is an option that helps theyoung person reintegrate into society but is not anend in itself. In some cases family reintegration is notpossible, due in part to the fact that mutual rejectionis very strong. In the case where family reintegrationis not viable, the family is visited by ‘social promoters’who hope to get them involved in activities that willhelp them to understand the difficulties their son ordaughter faces in their reintegration and the positiverole they can play.5. Social reintegrationThe preferred method of integration is through jobplacement. At first, the programme attempted to dothis through local placements with the help of friendlybusinessmen. But the stigmatisation against youngpeople who are tattooed is so strong that it failed.As an alternative, JHA–JA decided to create its ownemployment scheme, through the development ofco-operative businesses in skills defined by the youngpeople themselves so they would be able to generatean income while learning the skill. The young peoplewere trained in work skills, small businessadministration and marketing.In Rivera Hernandez, there are two ‘social promoters’from JHA–JA, a young man who advises the boys inmetal working and a young woman who advises thegirls at the tortilla factory. They were chosen becauseof their confidence and understanding attitude toyoung people and their familiarity with the culture,behaviour and problems faced by gang memberstrying to change their lifestyle. They both receivedspecialised training on working with ex-gang membersfrom the director of JHA–JA.55

● THE RIGHT NOT TO LOSE HOPEImpact of the modelOn children• Through their involvement in participativeleadership and work training, over 60 ex-gangmembers have been assisted to leave their gangand reintegrate themselves back into theirhome communities.• Some members of Generation X have becomeactive participants in their communities and havedemonstrated active leadership in various lobbyingefforts and meetings with high-level membersof the donor community and government. Forexample, some have become leaders of the SulaValley Youth Forum, which lobbies the NationalCongress, the President of the Republic andthe Congressional Representatives, seeking theirapproval of laws that benefit young people.• Members of Generation X are represented on theboard of directors of FUNDESERH and are awareof what that commitment entails. The programme’ssetting up of forums for gang members andex-gang members to express themselves andeducate the public about their thoughts and theissues affecting them has had a ground-breakingeffect in Honduras. This outreach to gangs is alsosupported by the Catholic auxiliary bishop of theSula diocese.• More young people of both sexes have becomeinvolved in the livelihood opportunities providedby the metal work and tortilla businesses,particularly since larger premises were acquiredand experienced personnel were recruited toprovide technical skills training and assistancein selling completed products.On the community and institutions• According to the police registers for 2000–04, an85 per cent reduction in the amount of crime inthe Sector Rivera Hernandez was recorded. Thenumber of violent killings prior to the programmebeginning in Rivera Hernandez had increased from10 to 17 per month from 2000 to 2002 and therewere eight business burglaries per month and oneor two cases of inter-family violence per day. Afterthe setting up of the programme in September2003 to March 2004, there was a reduction to onedeath per month and then to one every 45 days,with no business burglaries and only five cases offamily violence in three months. The gangs werealso not as visible as before in the sector fromSeptember 2003 to March 2004 and five gangswere dismantled. As a result of this, there was lesstension and suspicion between the community,police and ex-gang members. However, asexplained below, this huge improvement wasrecently threatened.• Better co-ordination with the community policewas established after their training by JHA–JA andthe investment in police posts by FUNDESERH(who also are supporting ex-gang members) havehelped establish a better relationship betweenthe police, Generation X members and JHA–JA.Generation X and JHA–JA have organisedfootball tournaments between community police,community teams and the ex-gang members,which have also improved relationships with thelocal community and police.• The community police have become increasinglysupportive of the workshops for ex-gang membersat the local level.• The majority of the positive leaders in thecommunity support the young people and theproject. But the general community is also ableto demonstrate its support for the young people intheir new employment, as the community is theprincipal source of work for the metal workshop.• From a population of 120,000, businessmen andvolunteers in Rivera Hernandez have contributed$2,652 per month to the programme.Lessons learned and challengesThe commitment and leadership of the communitypolice in Rivera Hernandez is a key factor inimproving the relationship with the community andproviding a secure and positive environment for theimplementation of the programme. However, theseachievements can be quickly threatened if, forexample, new senior officers are appointed withoutthis commitment and expertise. This, unfortunately,56

4 GOOD PRACTICE EXAMPLES OF COMMUNITY-BASED RESPONSES ●is what happened in July 2004 after the heads of thecommunity police for both Rivera Hernandez andSula were transferred and the community policeas an active force almost disappeared. There werestrong community protests and the community hascontinued to be a powerful voice for the restorationof the original ideal of community policing. Evidenceshows that when the community police fail to playthis role, then there is a dramatic resumption ofinsecurity and related killings.Members of Generation X are seriously vulnerableto attacks in Rivera Hernandez. There have beenmoments of resurgence of organised criminal gangstaking advantage of the decline in the active presenceof community police. Of the ex-gang membersattending the metal workshop two, aged 22 and 24,were killed in separate incidents, each with sevenbullets to the head in early April 2005, includingJonatan, whose story is told on p.112 of this report,while a further young person remains in hospital in acritical condition. On 29 June there was an attemptedmurder of a 23-year-old and on 4 July a young personaged 25 was killed. The metal workshop co-ordinator,aged 24, has received death threats. Despite thesekillings, the members of Generation X have showngreat and admirable courage and have not reverted toviolence in revenge, but it is difficult to know howlong this can be sustained in a context of acutesecurity breakdown.The active participation, advocacy and negotiationby civil society networks led by the local actors in theprogramme with senior police officers and officers ofthe justice system is essential to restore and maintainthe positive changes of the last few years. Recognitionof the importance of such a programme at all levelsand institutionalised support by relevant governmentand state officials at the highest level, especially inthe police and local municipal administration, as wellas continued support in civil society, are importantpreconditions to the effectiveness of a communitybasedapproach.The role and responsibility of the media must beaddressed, as they often portray under-18s in asensationalist way as being responsible for violentcrimes in the community, undermining effortsto win public and community support for thesepreventative models.The crime prevention policy of the communitypolice needs to be coupled with proactive protectionfor ex-gang members who are trying to break awayfrom the gangs and rehabilitate themselves, whichup to now has not been a key component of thecommunity police agenda.Gender issues need to be addressed carefully. It isestimated that 20 per cent of juvenile gang membersare female and are often young mothers with smallchildren. The question of specific support for thesegirls and young women, eg, improving self-esteemand confidence as well as provision of daycare centresand other facilities, must be addressed.Although the zero tolerance policy has “contributedto a significant drop in gang activities and improvedsecurity in many communities... there has been acorresponding cost in terms of rights and the longtermfight against gangs” (Harvey, 2005). Ex-gangmembers’ efforts to reform and support themselvesare made almost impossible by the negative attitudesof educational institutions and employers, eg, throughdiscrimination against those with gang tattoos and bycontinuous harassment and the threat of violencefrom law enforcement services and vigilante groups.This makes the decision by any gang member toleave extremely risky, especially as their old gangprotection is removed and they are also liable toviolent punishment from gang members.The exclusion of children and young people frompublic and social life has to be fought on manyfronts, by ex-gang members rehabilitating themselvesthrough training for employment and establishingtheir own organisations based on co-operative valuesand through others explaining and supporting theirefforts to reintegrate and contribute positivelyto society. This is crucial to ensure they are notfurther marginalised but gain a recognised stake intheir communities that restores their rights andresponsibilities as citizens and social actors.57

● THE RIGHT NOT TO LOSE HOPEKey elements of this good practice• The model represents a child-friendly,rehabilitative, integrated and holistic approachto assisting children and young people to leavethe gangs and become active citizens through theengagement of different social actors. As such,it begins to address the complicated range ofcauses that push children and young people intogang crime.• Sustained local and national advocacy has built theinterest and support of donors, the US embassy,civil society bodies, and some local governmentdepartments for this holistic model as an effectiveapproach. This has also been an importantcontribution to addressing the wider legal andinstitutional framework that determines nationalpolicy and practice.• Constant nurturing of engagement and supportwith the community police, civil society andcommunity leaders through training, relationshipbuilding, advocacy, networking and involvementwith the programme’s success has created anenvironment of support for ex-gang membersand those working with them.• Employment workshops, leadership training,encouraging young people to run their ownco-operative, to take a lead role in explainingtheir problems to the public and to do outreachto other young people in need of guidanceand support has given ex-gang members theopportunity to change their lives and to takea positive role in integrating themselves backinto society.• Engagement with the media has begun topositively influence the previously sensationalmedia coverage resulting in a more consideredanalysis of the situation and the communicationof constructive alternatives.Notes122Minneapolis Star Tribune editorial, 11 July 1993, quoted in Savethe Children (2004) p.1123Andino (2002b) Why we Work on the Issue of Gangs and theirPrevention in Central America, paper, Save the Children UKSourcesAndino, T (2002a) ‘Violence and Gangs in Central America’,presentation to Save the Children Regional Meeting on Children’sJustice in Laos, 2002Andino, T (2002b) Why we Work on the Issue of Gangs and theirPrevention in Central America, paper, Save the Children UKHarvey, R (2005) From Paper to Practice: An analysis of the juvenilejustice system in Honduras, Children’s Legal Centre, EssexUniversityRodriguez, D (2003) Strategic Review of the Juvenile Justice andGangs Programme, Save the Children UKSave the Children UK (2005) Annual Report Central America andCaribbean Programme 2004–05Save the Children UK, communications from Save the ChildrenUK Honduras programme staff58

4 GOOD PRACTICE EXAMPLES OF COMMUNITY-BASED RESPONSES ●2 LaosCommunity mediation: diversion of children in conflict with thelaw away from judicial proceedingsSummaryThe Children’s Village Mediation Unit in Laosrepresents a good example in a rural context ofdiversion at the earliest possible stage and away fromjudicial proceedings. It provides for a localised andcommunity-based intervention, which ensures thatchildren remain within their own communities andfamilies rather than being ‘uprooted’ to a justicesystem that is located far away. It also avoids anover-formal approach to children’s petty offending,empowering the community and the child with theopportunity to resolve the problem and address itsroot causes. It also represents an important example ofhow existing and well-entrenched conflict resolutionmechanisms can be built on and developed to becomemore child-focused and aware of child rights. It doesnot underestimate the challenges of making traditionalconflict resolution mechanisms rights-based, but itrecognises that these can be adapted with time andsupport to operate within a rights framework.BackgroundIn the 1980s and 1990s, with the development ofa more open economy in Laos, an increase in childoffending was reported. The UN Committeeon the Rights of the Child recommended in itsobservations on Laos’s 1996 report submission, theimplementation of a system of children’s justice inline with international instruments. It called onthe Government of Laos to “explore alternatives toinstitutional care as well as traditional methods ofreconciliation”. These were major influences in thedevelopment of a children’s justice initiative by theMinistry of Justice with technical assistance fromSave the Children UK.The principal mechanism available for reconcilingwrongs outside any judicial system in Laos is theVillage Mediation Unit. This body brings thecomplainant and accused together to make anamicable settlement through negotiation. It is not acourt and has no power to force a settlement againstthe will of the parties involved. Decisions are guidedby the mediators, who usually consist of the head andother respected members of the village or town wards,but any settlement depends on the agreement of theparties involved. If dissatisfied, the complainant cantake the matter to the police. Until 2000, however,the Mediation Unit only dealt with adult civil andcriminal resolutions.Development of the diversionprojectThe Children’s Justice Project, set up in 2000, wasunderpinned by children’s rights and a set of children’sjustice principles, which were the basis for its advocacyand training with all the different departments in thejustice system and with civil society. The first two ofthe project’s eight basic principles were:“1. In giving justice to children their rights shouldbe respected.2. Children should be kept out of the criminaljustice system whenever possible (for example by‘diverting’ them from the court system by usingmediation and village-based re-education).”The initiative by the Ministry of Justice provided thecountry with the opportunity to set up a diversionarysystem that would involve the overwhelming majorityof child offenders (98 per cent) whose offences werenot serious and so avoid dragging them through the59

● THE RIGHT NOT TO LOSE HOPEstigmatising processes linked to police arrest, pre-trialdetention and attendance at court.A study by the Office of the Public Prosecutor andMinistry of Public Security in 2003 interviewed152 children detained in prison in seven provinces.It confirmed that only about two per cent of thosein custody were serious offenders and that alternativemeasures should have been found for the other 98 percent. Of the offences for which the 152 children weredetained: 68 per cent (104) were drug-related and22 per cent (33) were property offences. The two percent of serious crimes consisted of one case each ofmurder, manslaughter and rape (there was also acase of causing death by dangerous driving). Illegaland inappropriate placements in detention wereunderstood to be a major problem and it reaffirmedthe need for appropriate diversionary measures tobe available.The Village Mediation Unit’s traditional role withadults had been recognised and legitimised in 1997 bythe Ministry of Justice in Decision 304, which set outits role, structure, rights and responsibilities. However,no mention had been made in this Decision of theUnit having any jurisdiction with regard to children.The Children’s Justice Project staff recognised thatsome variation on the Village Mediation Unit couldprovide the mechanism for children’s diversion thatwas needed if the majority of children’s cases wereto be resolved at a community level. In 2002, theMinistry of Justice decided that a research studyshould be undertaken to see if an adaptation of theVillage Mediation Unit would be acceptable to adultsand children “to bring settlements between childrenin conflict with the law and their victims outsidethe court system”. The research concluded that theMediation Unit, with some modification, would bean efficient system to resolve child offending in thecommunity and that this was already happening in theareas where the Children’s Justice Project was beingpiloted. It also emphasised that it would need toprovide a flexible and acceptable local, non-custodial,solution for children in conflict with the law (CICL)and that it should aim to promote education,vocational and social training and preparationfor a productive life.There are several community mediation optionscurrently in use: inter-family meetings, unit meetings(for clusters of around ten households) and VillageMediation Unit meetings. They are usually systematicin terms of process and documentation, and generallyall are chaired by the village head or his designate.Only cases that cannot be successfully settled at lowerlevels are referred to the Children’s Village MediationUnit. The Children’s Village Mediation Unit isset up with the agreement of the Ministry of Justiceunder their Juvenile Justice Project. It is plannedthat it should become national, but as yet theyhave no formal standing by way of regulation. TheChildren’s Village Mediation Unit differs from theVillage Mediation Unit for adults in that its mediatorsunderstand the rights of the child and encouragechildren to participate fully in the mediation process.Children’s mediators are often already imbued withstrong traditional restorative justice principles thathave long guided the Village Mediation Unit’s workwith adults. The Children’s Village Mediation Unitmembership generally reflects the political structureof the village, ie, village chief, respected membersfrom the three main mass organisations who arealso supportive of children (Lao Women’s Union,Lao Youth Union and the National Front forReconstruction – the most senior elders), andoccasionally a member of the local security unit. Thisis based on the composition set out in Decision 604.It is rare to find teachers or religious leaders aschildren’s mediators, although in some villages theyare called in to assist in specific cases.There is general consensus in children’s cases, aswith adults, that the aim of mediation is generallyrestorative and concerned with rehabilitation andreconciliation (through the drawing up of anagreement between the parties), not punishment. TheMediation Units stress the importance of communityreconciliation without involving the police if possible.Children’s Mediation Units deal with petty thefts,trespassing, drug use, fighting and motorbike offences.Mediators try to keep the proceedings of theChildren’s Village Mediation Unit private and try notto broadcast any agreement outside the meeting.60

4 GOOD PRACTICE EXAMPLES OF COMMUNITY-BASED RESPONSES ●Agreements are most often about compensation andthe mediators try to ensure they are reasonable. Thereare also examples now of community work beingagreed, especially where there is no immediate victim,as in drug cases. An overriding wish is that thecommunity finds its own solutions to its problems anddoes not suffer a loss of face. One of the mediatorsusually undertakes the follow-up with the child andfamily to check that the child is making satisfactoryprogress and the agreement is being fulfilled.Where Children’s Village Mediation Units are likelyto be active within project areas, one or two villageselectedmediators – including in particular the villagehead – receives training from the project’s districttraining committee and they in turn are expected topass on what they have learnt to those others who willsit on the Children’s Mediation Unit. An importantaspect of such training is encouraging mediators toinvolve the child so that he or she can express his/herviews and take an active part in reaching a consensualwritten agreement, including making an apology tothe victim. The offender is expected to attend withat least one parent and the victim is expected to bethere to repeat the complaint and be party to theagreement. Mediation will not take place if the childoffender does not accept responsibility for his/herinvolvement in the offence. If no agreement can bereached, then it is up to the complainant as to whatto do next.Impact of the modelOn children• Of the total number of children coming to theattention of the criminal justice system (police andprosecutors) and Children’s Village MediationUnits in the eight provinces where the Children’sJustice Project was implemented in 2002 and 2003,90 per cent were diverted from coming to court,of whom the majority were diverted by the policeusing cautions and re-education.• The numbers of children diverted by the Children’sVillage Mediation Units rose from 462 in 2002 to1,157 in 2003, which was an increase from 25 percent to 41 per cent of all those diverted, althoughthis rise is also likely to be the result of betterreporting. It is also probably a considerableunderestimate of diversions by Children’s VillageMediation Units, as there were units that wereactive but did not report.• Some mediators have reported that children whocome to the Village Mediation Units may dissuadeother children from offending by what they say tothem afterwards.• Those children and parents consulted all seemrelatively satisfied that mediation has helped settletheir difficulties, particularly as everything is keptlocal (they know better what to expect and so feelmore able to take part, there is less expense) andthere is a ‘softer approach’ (which saves face and isless stigmatising of the child and the family).On institutions• In 2002 and 2003 the first attempts were made tocollect data concerning what happened to childrenin conflict with the law in the eight provinceswhere the Children’s Justice Project was beingimplemented. The great majority of districts inthose provinces were covered, but only a fractionof the villages within the districts. Yet from thisvery partial data it is clear that Children’s VillageMediation Units were already having an impactin resolving children’s cases and thereby divertingchildren from the courts.• The Ministry of Justice has been supportive of theChildren’s Justice Project and keen to ensure that itbecomes a national programme in all the provincesof the country. It has run and provided staff andaccommodation for the Central ManagementTeam, called national juvenile justice meetings,and set up a juvenile justice data collection systemwith data collators in the Ministry.Lessons learned and challengesIn 2005 a study was completed on ‘Mediation as adiversion measure for Children’s Justice’ (Shuey, 2005)which looked at lessons learnt and good practice.From this and previous studies of diversion by61

● THE RIGHT NOT TO LOSE HOPEChildren’s Village Mediation Units, the followinglearning can be drawn from the Lao experience.Mediation at a local level is increasingly the preferredoption in cases of children in conflict with the law.The relative success of mediation for all the partiesinvolved largely depends on the persuasiveness andnegotiation skills of the chair, usually the village chief,and the other mediators. However, some parentsand authorities feel that mediation is too soft tosuccessfully change certain types of behaviour,mainly drug use and repeat offending – and stillfavour detention.Traditional ways of resolution, based on restorativejustice, common sense and local knowledge, are keyingredients in successful mediation. However, toimprove on the ways in which children are engaged inthe mediation process, continuous training on childrights and on ensuring that the child’s best interestsare kept paramount is essential, especially in assistingthe child to express his or her views and to participatein the mediation process.Although the 2002 mediation study advocated theestablishment of a totally separate ‘Children’sMediation Unit’ organisation at village level, this hasproved to be impractical for most communities. Localauthorities either use the Village Mediation Unit forboth adult and CICL cases, or the Village MediationUnit chair designates a group of unit mediators, whohave received training or have a special concern forchildren, to specialise in CICL cases. The latterapproach is the option the project prefers.Children who commit offences away from their villageor in larger cities and towns are more likely to betaken into police custody, at least until their cases canbe investigated and their parents located. However,there is good evidence now that police and prosecutorsare deferring minor CICL cases back to the villagelevel as quickly as possible. An example of this is inmotorbike offences where, in addition to warningsome bikers, the police have referred them back to theChildren’s Village Mediation Units for follow-up. Yetthere are still many examples of the police failing touse the mediation offered by the Children’s MediationUnits and detaining children instead, despite therequest of children’s mediators and parents.Children’s mediators are positive about the valueof their mediation work and they have growingconfidence in their ability to handle CICL cases,including those where there are no victims, as indrug abuse. But without written guidelines – such asthose available for the Adult Mediation Units – theirintervention lacks the official recognition they wouldlike. A regulation is required establishing the legalityof the Children’s Village Mediation Unit and its role,with clear general guidelines as to how it shouldconduct its affairs based on national and internationalinstruments.Preventative interventions by the Children’s MediationUnits are still rare, even though their earlierinvolvement in care and protection cases or wherechildren are seen to be ‘at risk’ would help preventchildren from becoming alienated and driven towardsmore risky behaviours, including offending. Theseunits could have a preventative and educative rolewith parents, schools, health clinics, for example.One of the major challenges to the effectivenessof Village Mediation Units is the turnover ofmembership, particularly in the case of those whohave child rights and children’s justice training. Therehas been insufficient emphasis on the importanceof information-sharing and dissemination to allMediation Unit members by those who have beenformally trained. Documents issued to trainees onmediation and guidelines on working with childrenin conflict with the law, in the form of Participant’sHandbooks, are not always available for all members.Another challenge is parents insisting that the policedetain their children who are ‘beyond their control’and who have substance abuse problems. Supportservices for parents and children should be provided,in particular, rehabilitation facilities for children takingdrugs, which should be managed outside the criminaljustice process, for example, by the Ministry of Labourand Social Welfare.62

4 GOOD PRACTICE EXAMPLES OF COMMUNITY-BASED RESPONSES ●Despite the increase in the use of diversion, thenumber of children who reached the district courts inthose eight provinces (if data from 2002 and 2003 iscompared), continued to rise from about 150 to 250and the number of children sent to custody or to arehabilitation centre for drug abuse also rose from83 to 119.Key elements of this good practice• Maintaining a range of mediation options. Thepreference observed in many communities to solveCICL issues as close to home as possible is goodcommon sense. It ensures the child is not removedfrom his/her community context and solutions arereached within the community. Using family andhousehold-level meetings as a first step is to beencouraged to ensure the availability of a range ofdiversionary options that will be appropriate to thedifferent situations in which children findthemselves.• Building on the traditional community system.Mediation is a long-standing method of disputeresolution in Laos. The Children’s MediationUnits have benefited greatly from the traditionalcommunity emphasis on reconciliation andresolving problems within the community, andthe many village mediators who already have skillsin patient listening, negotiation and restoringharmony in dispute situations.• Children are being diverted away from the districtpolice and the courts by the use of mediation inthe community, particularly by the Children’sVillage Mediation Units.• In most cases, all parties are left feeling that afair solution has been reached. The impressionfrom discussions with the mediators is that whileBan Hopakeo, Phonthong District, ChampassakA 14-year-old boy went to a shop in his village. Finding no one there, he decided totake two packs of cigarettes. He thought that whenever adults asked him to get themcigarettes, he could sell them. He had never done anything like this before and did notknow where the idea came from. A neighbour saw him, held him, and called for theowner and his parents. Parents and village authorities came and arranged a mediationmeeting for the following day. He was then sent home.The meeting was held at the shop owner’s house. In attendance were the boy, hisfather, two or three Village Mediation Unit members, and the shop owner. He admittedhis offence and agreed to re-education by the Village Mediation Unit and to pay forthe items stolen. He felt embarrassed and scared. He thought the naiban would sendhim to the police, so he was surprised with the mediation meeting. He did not knowabout mediation before and so he listened to the adults and agreed not to do suchthings again.They still visit him when they see him in the village and ask him if he isbehaving well.His father was satisfied with the mediation process.The authorities talked carefully tothe boy, but they were serious and helped him understand how to behave.The shop owner was satisfied with both the process and the outcome.This was herfirst experience with mediation, and she was impressed with the way the membersconducted the session. She received payment for the goods and is confident that theboy will not do this again. She did not want him to suffer at the hands of police asthis was a minor case and there was no damage.63

● THE RIGHT NOT TO LOSE HOPEBan Hatsady Neua, Chantabouly District,Vientiane Capital –mediation as preventionThe research team met five young boys between the ages of 14 and17. All had initiallybeen called by the village head and then by the Children’s Village Mediation Unit atvarious times over the previous year, as they had been observed coming home lateon a regular basis and making too much noise with motorbikes. In this urban Vientianevillage, this is considered delinquent behaviour. In each case the boy reported that hewas warned that being out late at night can be dangerous – they might meet badpeople who encourage them to do bad things – and that it also makes them lazyduring the day.They have each agreed that this was not a good idea and that theyshould come home earlier.Their parents report that since these meetings, the boysare coming home earlier and behaving better.The background to this action by the village head and then by the Children’s VillageMediation Unit is the fact that in previous years, there was a lot of trouble amongyoung people in the village and when the new village head was elected, he decided thataddressing this should be a priority. Four of the five boys interviewed had dropped outof school. Staying out late had often made them late for school and too tired to workin school, thus increasing problems between themselves and teachers.They did notlike being in trouble at school, so just decided to leave. None of their parents seemedto feel there was any other choice, but having them idle at home was also causingproblems as they wanted money to go out with friends.This created tension betweenthe boys and their parents.As part of the Children’s Village Mediation Unit intervention, each boy who was outof school was asked what he would like to do. Most wanted jobs locally, three in autoand motorbike repair.The village head talked to local businesses and found them places.He also contacted an urban programme to look into training possibilities. He hassucceeded in getting one place in this programme.this may not always be achieved, this is alwaysthe intention. As a result, a level of harmony isrestored and the offender has the opportunity totake responsibility to put things right with thevictim and make a fresh start with more supportin the community.• A small number of Children’s Mediation Unitmembers present (four or five), carefully selectedand trained to assist CICL cases, is more effectivethan a large number. The roles for teachers andreligious leaders could also be considered.Choosing individuals who are committed andtrustworthy is essential. An example observed inBan Pangkham, Luang Prabang, was of an activegroup of three children’s mediators, each quiteclear and confident of what they were bringingto mediation. They also assist in family andhousehold mediation as well as at the Children’sMediation Unit.• Raising community awareness. Many Children’sMediation Unit members are representingcommunity organisations, eg, Youth Union,Women’s Union and National Front forReconstruction. In several communities, thesemembers are also taking messages about childrights and children’s justice to their villagemeetings. For example, mediators from theChildren’s Mediation Unit in Ban Pangkhamused general meetings in their village to discussthese issues and to explore possible prevention64

4 GOOD PRACTICE EXAMPLES OF COMMUNITY-BASED RESPONSES ●and support measures. This helps to raise theawareness of everyone in the community of what isseen as being in the best interests of children, andfosters a positive attitude by parents and adults towhat the Children’s Mediation Unit is doing.• Parental support. Raising children’s rights andchildren’s justice issues in local, informal gatheringscan also provide an opportunity for parents todiscuss problems and seek advice. One Women’sUnion member – who is also on the Children’sMediation Unit – is facilitating discussions aboutCICL problems in her community and exploringsolutions and ideas for prevention with othermothers. The mothers also discuss difficultiesthey are having with their children.• The Children’s Village Mediation Units can playan effective role in prevention and rehabilitation.The counselling and job creation approach usedby Ban Hatsady Neua in the box on p.64 is anexample. Obviously this requires a proactive unitand a local economy that has realistic livelihoodopportunities.• Children are beginning to be asked their views bymediators when attending the Children’s VillageMediation Unit. This is a change, as in Laosociety children are not customarily expected orencouraged to speak out. The Juvenile JusticeProject has stressed the importance of hearingthe child’s opinion and this is beginning tobe accepted.SourcesOffice of the Public Prosecutor and Ministry of Public Security,Government of Lao PDR (2003) Survey of Child Offenders inLao PDRParry-Williams, J (2004) Final Evaluation of the Ministry of JusticeSave the Children UK-Supported Children’s Justice Project in LaoPDR Funded by British Government (2002–04), Ministry of Justiceand Save the Children UKShuey, B (2005) Mediation as a Diversion Measure for Children’sJustice, Ministry of Justice and Save the Children UK65

● THE RIGHT NOT TO LOSE HOPE3 The PhilippinesUrban community-based diversion model: the Children’s JusticeCommittee of the barangaysSummaryThe Philippines Barangay Children’s JusticeCommittee also provides a model of early diversionthrough mediation for children who have committedpetty or first offences, but this time in an urbanenvironment. Supported by community volunteersand peer educators, the committees provide anopportunity for the child, his or her family, the victimand the community to address the real issues behindthe child’s offending through a restorative approach.Importantly, it prevents the child entering a violentand arbitrary formal justice system where outcomes forthe child are very poor. Linked to existing communityresolution mechanisms at the local authority level, italso provides an important focus for the co-ordinationof support services that can be brought in tosupport the child, his or her family, the victimand the community.BackgroundThere is considerable violence used against childrenin the Philippines, both at a family level and in thecriminal justice system. Once children are broughtto court they are usually detained and few receivea non-custodial sentence. In 2001 in the FamilyCourts in Cebu – one of the country’s major cities –91 per cent of children in conflict with the law weresentenced to some form of imprisonment and onlyone per cent received a community sentence, despitethe fact that about 90 per cent of these children werefirst-time offenders.The economic downturn in the late 1990s in thePhilippines led to more children trying to maketheir living on the street, while at the same time theenactment of curfews and other restrictions meantthat more children were arrested by the police.During that time an estimated 20,000 childrenwere in detention and in appalling conditions. Fromresearch in the capital Manila, Cebu and Davao, thethree major offences committed by children wereagainst property (this came top in all three cities: inManila the prime target was mobile phones, in Cebushoplifting); the second most common offenceswere drug-related; and the third were sexual offences.A study of 700 street children in Manila showedthat 70 per cent of arrests were in connection withvagrancy or in police raids. Local regulations whichimposed curfews on children brought many childreninto conflict with the law. Despite Davao’s enlightenedlocal legislation, it has become known for its vigilantegroups, allegedly supported by the police and townauthorities, which have killed 18 children between1999 and 2003.Over the last 30 years, the government has institutedpolicies and laws to address the welfare of childrenat the lowest political and administrative unit (thebarangay) through: the Child and Youth WelfareCode (1974) which mandates the establishing of theBarangay Council for the Protection of Children(BCPC) within the Barangay Council; the SupremeCourt ruling supporting Barangay conciliation forpetty offences; the National Plan of Action forChildren; and local ordinances. Yet little has happenedin terms of implementation. The barangays arecomposed on average of about 1,000 households butin some places have many more and are the primaryimplementing unit of government policies in thecommunity. They are made up of both elected andappointed members.The functions of the Barangay Council forthe Protection of Children are set out in thebox opposite.66

4 GOOD PRACTICE EXAMPLES OF COMMUNITY-BASED RESPONSES ●Barangay Council for the Protection of Children functions• Foster education of every child in the barangay.• Encourage proper performance of duties of parents, and provide learningopportunities for adequate rearing of children on positive parent-child relationship.• Protect and assist abandoned, maltreated and abused children and monitor casesfiled against child abusers and report the same.• Take steps to prevent juvenile delinquency and assist parents and children withbehavioural problems so that they can get expert advice.• Adopt health measures for the health and nutrition status of children.• Promote the opening and maintenance of playgrounds, daycare centres and otherfacilities that are necessary for child and youth welfare.• Co-ordinate the activities of organisations devoted to the welfare of children andsecure their co-operation.• Promote wholesome entertainment in the community, especially in movie houses.• Assist parents whenever necessary in securing expert guidance counselling fromproper government/private welfare agencies.• Advocate passage of barangay, city/municipal and provincial ordinances regardingchild-related issues and concerns.• Prepare barangay plans of action for children which address the needs of children inthe community and ensure their integration into the Barangay Development Planand implementation by the barangay.• Submit quarterly barangay accomplishment reports on the implementation of thePlan to the City/Municipal Council for the Welfare of Children (C/MCWC).(Source: Council for the Welfare of Children (CWC), Department of Interior and Local Government (DILG),Department of Social Welfare and Development (DSWD) and United Nations Children's Fund (UNICEF),2001. Manual on Organizing Local Councils for the Protection of Children, Council for the Welfare of Childrenand Department of Social Welfare and Development, Manila.)Development of the diversionprojectSave the Children UK’s programme in the Philippineshas focused on enhancing the protection of childrenfrom abuse and exploitation. A major strand since2001 was to improve justice given to children inconflict with the law (CICL). One aspect of this,as well as working with the police and a universityin providing child rights and CICL training,was to support a local NGO, FREELAVA (FreeRehabilitation, Economic, Education and LegalAssistance Volunteers Association, Inc.) as a partnerto see whether children could be diverted from thecourts by working with the barangay councils inCebu. The long-term aim was to try and establish amodel of diversion at the community level that couldbe replicated nationwide. With its ongoing activitiesof promoting legal aid, crime prevention, andproviding a ‘halfway house’ for children released67

● THE RIGHT NOT TO LOSE HOPEearly from prison, FREELAVA was in a good positionto explore the possibilities for diversion, especiallyas during its 20 years in Cebu it had become wellrespected at the community level.From 2002 to 2004, FREELAVA has liaised closelywith 12 barangays in Cebu City known for their highlevels of poverty and migrant population. FREELAVAworks particularly in those barangays with the BCPC,which is a discrete body for children within theBarangay Council. Its task, as shown in the box onp.67, is to look after the survival, security, protection,development and empowerment of every child inthe barangay.To undertake the diversion of children, FREELAVAencouraged the setting up of pilot Children’s JusticeCommittees within 12 existing BCPCs. The chair andco-chair of the Children’s Justice Committees, who arethe main mediators, are appointed from the Lupon(the Barangay Justice Committee for adults). Thereare usually nine other mediators including a genderand development officer, a barangay senior policeofficer, a school guidance councillor, a representativeof the community volunteers, an NGO (usuallyone of FREELAVA’s outreach workers) and a youthcommittee member, some of whom are elected. TheChildren’s Justice Committees are not courts butmediation bodies. Their main task is to mediate inminor offences or first offences between the victimand offender. By law, cases that can be heard must notbe liable for a maximum penalty of over one year indetention or a fine of Php 5,000 ($89) and should bebetween parties living in the same barangay.There are six key stages by which children shouldcome to the attention and go through the Children’sJustice Committee (CJC) process: 124Stage 1 – CICL come to the attention of the CJCArrests may be made by the barangay police or statepolice. In the former case the child is handed over tothe CJC the same day or, if taken at night, returned totheir parents and told to report to the CJC the nextday. Children arrested by the state police are handedover to the Women and Children’s Desk who, in turn,hand them over to the CJC. If an adult makes acomplaint, then the CJC invites the child and parents(like a summons) to attend the CJC via the barangaypolice or a community volunteer. The CJC may alsorequest the ‘handing-over’ for diversion of a childwho is being held in a temporary shelter because ofan offence.Stage 2 – Interview and case filingThe child is asked for basic information about hisor her personal circumstances, the nature of theoffence, etc. The interviewer, usually a CJC member,documents the facts on a CJC ‘Intake Sheet’. Theseinterviews take place in private and are confidential.The Intake Sheet is then handed on to the CJCmediator. Parents are seldom present duringthis interview.Stage 3 – Explanation about the diversionprogrammeIt is usually the CJC chair who explains to the parentsand the child the process of mediation and the benefitsof diversion and asks for the consent of the child toundergo diversion. Another CJC member talks to thecomplainant about the process, about the benefits ofdiversion and the consequent accountability of thechild offender. This is the procedure for securing theinformed consent of the complainant. These activitiesare required procedures before the mediation itselftakes place.Stage 4 – MediationMediation by the CJC is key to the diversion process.It is intended to resolve the conflict or settle the harmdone by the child offender to the victim and thecommunity. The mediation which involves a childoffender can occur in cases when an offence has beencommitted against a person, such as theft, assaultand threats, or when an offence has been committedagainst the community, for example, when it concernsthe use of prohibited drugs or the breach of curfew68

4 GOOD PRACTICE EXAMPLES OF COMMUNITY-BASED RESPONSES ●ordinances. By law, it is the chair or co-chair of theCJC from the Lupon (adults’ Barangay JusticeCommittee) who should undertake the mediationprocess. However, this is often delegated. This may beto the gender and development project officer or thebarangay captain.Generally during the mediation process, the CJC chairor co-chair asks the child about the circumstances ofthe crime – the motive for the offence, the factorsthat led the child to commit it – and his/her personalcircumstances, relations with parents, his/herschooling, his/her peers, etc. The CJC chair ensuresthat the child understands his/her accountability, issorry for his/her actions and takes on the responsibilityof repairing the harm done in lieu of filing a formalcase in the court. The key to a successful mediationis when the offending child asks for forgiveness orsignifies remorse for his/her action and agrees to makereparation to the victim for the offence. All this takesplace in the presence of the complainant (if applicable)who sits in the mediation conference together withthe offender, his/her parents and one or two otherCJC members.Once the child expresses remorse, the CJC mediatornegotiates with the complainant with the aim ofpersuading him or her to settle the matter at thecommunity level. The mediator also assures thecomplainant that the CJC will assume theresponsibility of reforming and monitoring thechild through various diversion and reparativeactivities. In this diversion programme themediation process can only succeed when thereis a remorseful child and parent, and a forgivingand amenable victim.In cases where the complainant is not amenableto settling the case, a 15-day cooling-off period isprovided for, but is seldom used. In cases wherethe child offender has committed offences beyondthe powers of the CJC to divert or has committedan offence for the third time, the case is usuallyautomatically forwarded to the police forcourt filing.Stage 5 – Preparation of the settlementagreement (the Covenant)The CJC mediator facilitates the conditions of thesettlement agreement and diversion programme for theCICL in consultation with the child, the parents andthe complainant. The settlement agreement is thenfirmed up in the Covenant Form, which sets out whatthe child, parent, complainant and arresting officerwill do and then includes a statement saying that theywill co-operate together in honouring the Covenant.It is signed by the complainant/arresting officer, child,parent/guardian, two CJC members and the CJCchair/co-chair.Stage 6 – Rehabilitation and reintegrationThis is the last stage of the community-baseddiversion programme. However, it is not consideredthe termination of community diversion workbut rather as the beginning of a much bigger andbroader process of restoring the life and self-worthof an offending child. Rehabilitation is the processwhereby the child’s negative behaviour and attitudesare addressed with the aim of assisting the childto adopt more positive and acceptable behaviourand so be accepted back by his/her community.Rehabilitation is integral to the process ofreintegration. Reintegration is the process thatpromotes and facilitates the child’s acceptance backinto the community, including through providingrestoration to the victim and the community.The creating of a culture of social acceptance andinclusion by the community for diverted CICLis a major task for barangay officials and thoseworking for the CJC.FREELAVA has trained CJC mediators, alsorelevant police officers, community colunteers andpeer educators in order both to give a rights-basedapproach to how CICL are treated and assisted andto promote the development of a more acceptingculture among families and community to CICL.The community volunteer is the local liaison personwith the CICL once the Covenant between the child69

● THE RIGHT NOT TO LOSE HOPEand victim has been signed. Their task may initiallyinvolve bringing the CICL from the police, doingthe initial interview and being on the CJC, but itis primarily about supporting the rehabilitation andreintegration of CICL so that they do not reoffendand to ensure that the agreement is met. They alsohave other roles, providing community educationabout child rights and diversion and working withpeer educators, who they help train and thensupport in carrying out their tasks. Most communityvolunteers have been volunteers in other programmes,eg, on AIDS education and action against prostitution.The great majority are women (105 of 120) and mostcome from barangay workers, followed by housewives,street vendors and the barangay police.Peer educators are children who have usuallythemselves been in confict with the law but who, withtraining in leadership and other skills, are seen to haveadopted positive attitudes and to be good potentialmentors for diverted children. They support CICLthrough sports activities and by drawing on their ownexperience to explain to children diverted from thejustice system why they should stay out of trouble.Apart from being able to relate well to recentlydiverted children and direct them away fromoffending, peer educators also benefit personally intheir own rehabilitation, as it gives them a role andstatus in the community. Many peer educators aswell as CICL and children at risk of offending havebeen assisted by FREELAVA to return to educationthrough various forms of funding.Impact of the modelOn children• In less than three years, 600 children have beendiverted from custody. In seven of the pilotbarangays where there is data of diverted casesof children for the last two years, four barangaysshow a fall in cases of 97 per cent, 79 per cent,56 per cent and 37 per cent respectively. Theoverall decrease would have been much higher iftwo areas had not had a major increase in cases,possibly because the drug trade and drug abuseare rampant in these two areas (Save the ChildrenUK (2005) Back on Track). Certainly in fourbarangays there seems to be a reduction inminor offending.• Five children interviewed in depth for the Back onTrack study about their history and the diversionprocess related in detail how important themediation experience was for them, including thesigning of the Covenant and the caring way theywere spoken to and treated by the CJC mediators.Most spoke of the importance of reconciliation,especially from their own family.• Other CICL speak of better treatment by people inauthority, especially the police, in that they are lesslikely to be handcuffed or abused. Some parentsand community members are less antagonistictowards them because of their greater awarenessabout children’s best interests, eg, throughcommunity education by community volunteers.• In the school year 2003–04, 124 out-of-schooldiverted CICL were enrolled in education andassisted by FREELAVA.• In interviews, peer educators expressed theempowerment they felt at being involved inthe justice process and being looked uponas confidantes by CICL. They felt moreself-confident, much more accepted by theircommunities and proud of being seen as rolemodels for CICL. This in turn made them actmore responsibly and avoid getting into trouble.On the community• All 12 pilot barangays have active CJCs. All thesebarangays have passed resolutions creating theCJC as a permanent committee of the BCPC.• FREELAVA has participated in the Cebu CityCommission for the Welfare and Protection ofChildren and other task groups, and this hashelped to foster greater collaboration betweensome of the pillars of justice. The Cebu CityGovernment has amended its Local Codes forChildren to incorporate the principles of the UNConvention on the Rights of the Child, restorativejustice and diversion as part of its provisions.70

4 GOOD PRACTICE EXAMPLES OF COMMUNITY-BASED RESPONSES ●Quotes from three children in conflict with the law about themediation processManuel said, “I do not know what would have become of me without the diversion process”.Jerry explained, “I have changed now since the mediation. I have no more record with thebarangay police and people in the barangay hall now believe me. I do not have to bragabout it. What is important is that I have changed for the better.”In a third case, the same CJC mediator was involved with one boy, Ramon, on threedifferent occasions. After an offence of shoplifting there were two others of threateningbehaviour, the last of which was a threat to kill his father because of his substanceabuse. After the third mediation the boy was very thankful to the CJC. “If not for AtePerlita (the CJC mediator), I wonder where I could have been now? Without this mediationprocess, perhaps, you would have seen me in jail today... I am very thankful to the Lupon(CJC chair).They find ways and means to reconcile us and make peace with each other.That's what they do. I am very thankful because they forgave me despite the fact thatI was brought here three times now.”After the mediation, Ramon declared he is now at peace with his father. “I am now ableto get over my frustrations with my father. I have drawn closer to him.”(Cases taken from Save the Children UK (2005) Back on Track)• Most complainants are also reported to besatisfied with the results of mediation.• Some CJC mediators have shown great insightand patience with CICL and exerted considerablemediation skills in obtaining the complainant’sagreement for diversion to take place.• 1,100 police have been trained in child rightsand restorative justice principles; 150 duty bearersand 150 community volunteers have receivedtraining on diversion and at least 88 peer educatorshave received training on leadership. This traininghas raised the profile of child rights in thosebarangays and the need for a more understandingapproach to children with problems rather thantreating them like adults.Lessons learned and challengesA progressively favourable environment towardschildren’s rights, restorative justice and diversionhas developed as the result of a wide range of forcesnationally and locally, stressing the importanceof protecting CICL and treating them humanely.These include the Supreme Court, the police(including the Women and Children’s Desks andlocal police), city officials, NGOs working in childprotection and their networks, human rights bodies,the Department of Social Welfare, barangay officialsand communities.The range of community participants who have beenmobilised to play an active role in the project hasbeen a major strength. This has included barangayofficials, community volunteers, peer educators,parents/guardians of children, local police and theWomen and Children’s Desks and school councillors.Some community volunteers have been electedonto the Barangay Council because of their work.(However, the giving of honoraria to communityvolunteers who are government officials has upsetthose who are not.)71

● THE RIGHT NOT TO LOSE HOPECurrently there is almost total reliance on FREELAVAfor funding, which undermines the sustainability ofthe project. The model is threatened by the lack offunding at many levels. Money should be allocated toensure that rehabilitation in the form of educationalsupport and vocational training is available at thebarangay level to give CICL the opportunity toimprove their lives. All community volunteers shouldreceive some basic remuneration, not only those whoare barangay officials. Funding is also essential forregular training, meetings and to cover transportcosts. With the passing of the Cebu’s Local Codesfor Children, barangays can pass ordinances settingup the CJCs more formally and this should alsomake it easier to access funds.The CJCs are the strongest element in the 12 BCPCs,which are otherwise generally weak and elsewhereoften non-existent. Attaching the CJCs to the JusticeCommittees of the main Barangay Council, whosemembers take the lead roles in the CJC, mightmake it easier to establish them elsewhere and toaccess funds.A one-off training session is insufficient to changeattitudes; there needs to be regular upgrading anddevelopment of skills to keep the volunteers andmediators motivated. Training is also necessary tomaintain or boost staff numbers; only 66 per centof the original 120 community volunteers remainand 59 of the original 88 peer educators. Already,community volunteers have an average of sixdiverted children to support (80 communityvolunteers to 442 diverted children), who maynot be easily accessible, so visits are often not made.There is also often a change in the mediators inthe CJC after elections, especially of the chair andco-chair, as the newly elected Barangay Captainappoints them.Better monitoring and support in practice is requiredof all personnel in the CJC process to overcome thevariable standards in how children are treated duringapprehension, mediation and follow-up.There is also insufficient co-ordination with thetrained city social workers who can assist where thereare serious problems, eg, in drug abuse cases.There needs to be more research on the long-termeffectiveness of the diversion model. Follow-upstandards are required which can be monitoredto include at the end of six months: visits made,child’s and parents’ final views of its usefulness,child’s occupation (school or work) and anyreoffending.Key elements of this good practice• The development of a model that builds on theexisting adult Barangay Justice Committee’smechanisms and skills but also attempts to linkwith other parts of the child protection systemso as to provide a better service.• The involvement and training given to selectedcommunity volunteers, which has led to highlevels of commitment in their role as mentorsof CICL.• The innovative use of trained and selected peereducators, who were former CICL, to assistrecently diverted CICL on a monthly basis(one peer educator ran 20 sessions a month).• Community recognition of the role peereducators play in assisting diverted CICL hasraised their self-esteem and encouraged themto stick to the more positive social attitudes theyhave adopted.• By 2003, all programme actors had had two orthree training sessions in all the pilot barangays.• The provision of educational support to CICL,peer educators and children at risk of offendinghas given these children a better chance ofavoiding offending.• Mediation has often been carried outappropriately (eg, in private with a protocolas to how mediation should be done), effectivelyand in the shortest possible time by the CJCmediators, and many diverted CICL havebeen supported.72

4 GOOD PRACTICE EXAMPLES OF COMMUNITY-BASED RESPONSES ●• Different tools for community diversion havebeen used, including reporting and communityservice, written apologies, reparations andliteracy assignments.• A template CJC ‘Intake Sheet’ has been used fortaking particulars of the CICL before mediationand a ‘Covenant Form’ sets out the rights andresponsibilities of the CICL under the diversionprogramme, and is signed by all parties. These areimportant reference documents. Also separateregisters have been used for CICL by the Womenand Children’s Desks in most pilot areas.• CICL have come together to give their views asto how they were treated at each stage of the justiceprocess and have given their recommendationsfor change, which, in one instance, were listenedto by an audience that included the mayor,judge, prosecutor, police, detention and NGOrepresentatives, who then responded.• Advocacy has led to diversion being promoted byCebu City Council in their Local Codes forChildren.Note124This summary of the stages is a revised and shortened version ofthose in Save the Children UK (2005) Back on TrackSourcesChantrill, P (2005) Facilitating Justice for Children in Conflict withthe Law in the Philippines: Evaluation Report, Save the ChildrenUK‘Children’s Forum on the Juvenile Justice System’, Save theChildren UK, communications from Save the Children UK thePhilippines programme staffEtemadi, F, Ancheta-Templa, M, Ateneo Human Rights Centre,Parry-Williams, J (2004) Breaking the Rules, Save the Children UKSave the Children UK (2005) Back on Track: Makingcommunity-based diversion work for children in conflict with thelaw. A documentation of FREELAVA’s experience in Cebu City,Philippines. Awaiting publicationTambayan – Centre for the Care of Abused Children Inc. (2003)Kuyaw! Street Adolescents in Street Gangs in Davao73

● THE RIGHT NOT TO LOSE HOPE4 KenyaPolice action to divert children in need of care and protectionfrom court and detentionSummaryThe Kenya Diversion Project addresses the crucialrole and impact that the police have on children asthe point of contact once a child is deemed to be inconflict with the law. Crucially, it recognises not onlythat the police need specialised training to deal withthose cases but also provides a support frameworkfor the police to call on other services to deal witheach individual case. This ensures not only moreappropriate and co-ordinated responses, but alsobetter use of existing resources and better outcomesfor children through appropriate case management.It builds on the police’s discretionary powers toavoid unnecessary criminalisation and supports themin using these powers in a positive way that recogniseschildren’s circumstances and that is more in line withchildren’s rights.BackgroundThe annual reports of the Kenyan Department ofChildren’s Services in 1997 and 1998 estimated that80 per cent of children in the juvenile justice systemwere cases of protection and only 20 per cent hadactually committed offences, of which only a few wereserious. It became clear that the majority of children inthe remand homes in Kenya were not those who hadcommitted offences (the age of criminal responsibilityis ten years), but those who had fallen foul of lawsconcerning their care and protection. The newChildren Act 2001, like its predecessor, states thatchildren are deemed to need care and protectionif they would not receive it unless the court tookaction. These laws can be applied where children areparentless, homeless, found begging, or scavenging.They are often used to control poor urban workingchildren visible on the streets, engaged in survivalbehaviour by working or asking for money. Suchchildren are arrested by the police and detained inpolice cells while arrangements are made for achildren’s officer to prosecute them. Because ofdelays, these children are often sent to remandhomes.Children can only be admitted to a remand home on acourt order by a magistrate before or after a report hasbeen received from a children’s officer. Frequently, thesentence recommended to the court by these officers isto send these children for approved school training,where they may stay for up to eight years or until theyare 18 years old. Approved schools are intended underthe law for serious offenders who require a long periodof rehabilitation in order to reform. Yet children inneed of care and protection are sent there and arecriminalised and marginalised because they are poorand because the care and protection systems havefailed them.The Department of Children’s Services manages theten remand homes, 12 approved schools and onechildren’s home, which together take up two-thirdsof its budget. This reflects a strong bias towards theinstitutionalisation of children, often in conditionsthat fall well below satisfactory standards and forprolonged periods of time, as in the approved schools.Interestingly, it is reported that most children go homewhen allowed to, undermining the impression thatthey are without parents or guardians.Development of the diversionprojectTo keep children out of the justice system, especiallythe care and protection cases, the Department ofChildren’s Services and Save the Children UK started74

4 GOOD PRACTICE EXAMPLES OF COMMUNITY-BASED RESPONSES ●a pilot diversion project in 2001 to divert childrenaway from the courts in Nairobi, Nakuru andKisumu. The overall objective is: “To implement apilot diversion project for children in conflict withthe law in three project areas in order to protectchildren from inappropriate institutionalisation anddemonstrate a viable alternative to custodial care andin this way influence the practices and policies ofkey government and non-governmental agencies atregional and national levels.” 125The aim is to divert children, especially those in needof care and protection, away from the justice system attheir earliest point of contact – namely with the police– and to ensure that police officers are trained andcompetent to refer children to other agencies insteadof detaining them. In order to do this, specialisedunits, Child Protection Units (CPUs), were set up infour major police stations in Kisumu, Nakuru and inNairobi (Kilimani and Kamukunji). The 17 CPUpolice officers were trained in child rights and thediversion process.The CPUs are supported by a diversion framework.Its aim is to progress the overall project objective inthe districts and communities where the four CPUsoperate and to influence national policy and advocacy.The main structures within the framework are thestrategic alliance, the national diversion core team, thedistrict diversion core teams and community-basedsupport systems for children. This support frameworkcurrently involves 13 government departments, 22NGOs, three legal networks, 19 community-basedorganisations and four police stations involvedin the three pilot project areas (Nairobi, Kisumuand Nakuru).The main components of the framework are asfollows:Strategic allianceIt is the project link to policy level. Its memberscollaborate and lobby on issues of juvenile justice.It has four subcommittees and diversion falls underone of these.These subcommittees are:• Diversion and decongestion of correctionalfacilities• Development of standardised procedures andpractices• Research and information management• Lobby group on child protection policiesNational diversion core teamMembers:• Department of Children’s Services: co-ordinatesdiversion project activities at national level• Police Department: police headquartersco-ordinates all activities of Child ProtectionUnits at police stations• Save the Children Sweden: provides technicalsupport, is responsible for project monitoring andevaluation, submitting project proposals to donorsfor funding, and overseeing that project activitiesmeet the project objectives• Children’s Legal Action Network: Legal adviser atnational levelDistrict diversion core teams (a subcommittee ofthe Area Advisory Council)Members:• Department of Children’s Services: co-ordinates alldiversion project activities at district level.• Police Department: co-ordinates all activities ofChild Protection Units at project police stations• ANPPCAN – Kenya: provides legal support andrescue to children targeted by project• Children’s Legal Action Network: provides legalsupport to children targeted by project• Child Welfare Society of Kenya: providestemporary places of shelter and counselling• Goal – Kenya: provides temporary places of shelter,offers counselling and reintegrates childrenCommunity-based support systems for childrenMembers:• Undugu Society of Kenya (Kisumu and Nairobi):offers skills training, counselling, repatriation andfollow-up of the children in the project75

● THE RIGHT NOT TO LOSE HOPE• Mwangaza Street Children Programme & StreetChildren Programme of Nakuru (SCANN): offersskills training, counselling for parents and children,non-formal education and follow-up in Nakuru• Pandipieri Street Children Programme (Kisumu):offers non-formal education, counselling forparents and children, follow-up• Local Authority: supports through communitybasedhalls (Nakuru and Kisumu) that providetoys, books, television, space, community socialworkers• Goal Reception Centre (Nairobi): providestemporary shelter, offers counselling andrepatriates children• Lions Club: furnishing CPU in KisumuTraining on child rights and diversion has been amajor component of the project in the three pilotproject areas. From 2001–04 the following groups ofpeople received training: 290 police, 206 stakeholdersincluding children’s officers, probation officers andmagistrates, 268 community members and 1,407children. Seven specially designed training sessionsalso took place for the district diversion core teamsat which an average of ten agencies attended. Thepublication of Guidelines for Implementation ofChildren and Young People’s Diversion Strategy waspart of the advocacy used to influence the police,parliamentarians, networks and NGOs.Impact of the modelOn children• The project has had strong impacts on children’slives across the four project sites over its first fouryears (2001–04). A total of 2,800 children havebeen diverted from the courts with the assistance ofthe Child Protection Units and the co-ordinatedwork of the district diversion core teams and theArea Advisory Councils. Of these, around 70 percent were reintegrated with their families, 20 percent were taken to temporary rescue centres whilework to reintegrate or place them elsewherecontinued, and ten per cent were orphans sentto children’s or remand homes pending furtherinvestigation. By diverting these children fromcourt the project prevents them becomingstigmatised and being exposed to criminalisation,violence and abuse while in detention.• The district diversion core teams have reported a90 per cent drop in the number of children beingreferred to the children’s courts in the four sites ofthe project.• Two-thirds of the children dealt with by the projectare boys. However, Kamukunji CPU receivedmainly girls (aged between 8 and 16) who hadserved as house girls and then ran away from theiremployers because of mistreatment. Of the first640 children received there, 559 were reintegratedback in their home communities.• In practice there is generally perceived to be abetter relationship between children and the policein the CPUs than in other police stations. In thefour CPUs, police officers treat children morehumanely, pay more respect to their rights andopinions and provide better separate facilities forboys and girls. CPU officers wear civilian clothes,use friendly language, are more child-focused anddo not assume children are criminals.• Decisions by the CPU officers and the districtdiversion core teams as to how to assist childrenare now much quicker, with some children beingresettled straight from the police station. Manynow stay in police custody for less than 24 hoursand as a result, police stations are less congested.The number of children in Nairobi Children’sRemand Home has been reduced by half. Ingeneral, children are spending only days in remandhomes rather than weeks or months.On communities• Within the project areas there has been goodcollaboration with civil society and communities(principally through Area Advisory Committeesand district diversion core teams). A wide rangeof groups dealing with children (children’s homes,NGOs working with children, community leaders)have been empowered to take a greater role inprotecting children through the project. Sixcommunity-based organisations are assistingdiverted children in their community reintegration.76

4 GOOD PRACTICE EXAMPLES OF COMMUNITY-BASED RESPONSES ●• Local children’s homes are taking in some of thechildren who are not immediately repatriated andthese provide better conditions than the remandhomes. There are signs that the community issupporting the project, eg, the municipal councilsin Nakuru and Kisumu have donated the use oftheir community halls, which the project is usingas centres where non-formal education, skillstraining and counselling are conducted by theDepartment of Children’s Services; the LionsClub is furnishing the Kisumu CPU; and themunicipal council is providing milk for childrenunder police protection.On institutions• The police, Department of Children’s Services,probation service and NGOs are workingtogether for the first time in new collaborativestructures. Training has led to better practiceby key stakeholders and child rights have beenincorporated into the police training curriculum.The work of the CPUs in their districts isbecoming well known and children are beingreferred to them from other stations; there arealso examples of trained police officers startingdiversion projects in other areas, eg, Naivasha.• A Memorandum of Understanding recognising thediversion project is awaiting signature between theDepartment of Children’s Services, the police andSave the Children. The Police Department havetaken up the issue of strengthening and expandingCPUs as part of police work with their ownmodel CPU and a quota of trained officers.• The pilot project has been recognised as a successat the national policy level, with the Ministryof Finance agreeing a budget line within theDepartment of Children’s Services on ‘diversion’of US$5,000. The Kenyan Government andUNICEF are planning to replicate the model intwo other areas in 2005, and Save the Childrenand the Department of Children’s Services haveplans in another five areas. The establishment ofthe strategic alliance and the national district coreteam are in themselves major achievements andthey have raised the importance of child rightsand diversion with national stakeholders. 126Lessons learned and challengesEffective reintegration and resettlement depends ona close collaboration being fostered by the districtdiversion core teams between the police, theDepartment of Children’s Services, probation andafter-care services, NGOs and other civil societyorganisations and communities. Considerable progresshas been made but there needs to be a greater sense ofownership by the Department of Children’s Servicesand police for the project to develop nationally.Historically, co-operation between government andNGOs has been weak, so more work is required tobuild up trust and respect between them as so muchdepends on their partnership. The diverse and distantlocations to which children have been resettled haverequired links with many national and district NGOsand agencies. Lack of knowledge about them has oftenhampered effective support to reintegrated children.Diversion is helping to strengthen the communitybasedlobby and to emphasise institutionalisation as alast resort. However, there is no mention of diversionin the Children Act 2001 and there is a lack of strongcommunity-based support structures to assist divertedchildren. There are no standards for community-basedcare and those for institutions are inadequate andseldom monitored and enforced.Although there are figures for children who have beenreintegrated, follow-up is lacking, and as a result thereis insufficient data and understanding on which togauge their progress and to identify how many havenot come into conflict with the law again.CPU police staff, after training and liaison withdistrict diversion core teams, have shown acommitment to respecting the rights of children.However, it is not uncommon for them to betransferred and to be replaced by untrained officers,so the need for ongoing training is critical if thestandards set by the CPUs are to be maintained.Although the numbers of children in NairobiChildren’s Remand Home have been halved, thepopulation of the remand homes at Nakuru and77

● THE RIGHT NOT TO LOSE HOPEKisumu in November 2004 continued to contain amajority of children in need of care and protection.Practical and policy/legislative changes are stillrequired. Closer co-operation with children’s homesis necessary to reduce the numbers in remand homes.More data is also required to determine the timechildren are spending in remand homes and if anyare being sent to approved schools.the concept of diversion has reached an importantlevel of recognition and commitment withingovernment.• More humane individual treatment is given tochildren by CPU staff and these units providebetter facilities. The accommodation is separatefrom adults and the 24-hour rule for keepingchildren in custody is respected.Key elements of this good practice• Effective co-ordination and networking forreferral has been established. The CPU desks andthe district diversion core teams are workingtogether and linking up with government agencies,NGOs, legal networks, the business community,community-based organisations and local leaders.This has become an effective combinationto reintegrate care and protection cases morequickly without going through the drawn outand stigmatising process of the courts andwith less and shorter use of police cells andremand homes.• Separate systems of data management havebeen established in the CPUs. This includes therecording of each care and protection case inthe CPU diversion register, the introductionof diversion social enquiry forms and diversionreferral forms.• The national diversion core team and the strategicalliance are fostering links between the districtsand the central government, raising the profile ofdiversion among key government stakeholders andpromoting this model both in practice and at apolicy level.• The Ministry of Finance has created a budgetline on ‘diversion’ and their funding of theDepartment of Children’s Services shows thatNotes125Save the Children UK Kenya Programme (2004) Narrative andFinancial Report to Oak Foundation, April 2003–March 2004126Information in this section is from Starling and Murungi (2005)SourcesDunn, A (2000) Report on Children in Conflict with the Law forSave the Children UK, Kenya Country Programme, Save theChildren UKKaranu, K, Mwaura, P and Mwangi, J (2002) A Review Report onthe Pilot Diversion Project for Children in Conflict with the Law inKenya, National Diversion Core Team, KenyaPilot Diversion Project National Core Team, Kenya (2002)Guidelines for the Implementation of the Diversion Strategy forProtection and Care Cases in the Juvenile Justice SystemRoy, N (2003) Evaluation of the Pilot Diversion Project for Childrenin Conflict with the Law in Kenya, Save the Children UKSave the Children UK (2005) Pilot Diversion Project for Childrenin Conflict with the Law in Kenya, report for the Royal NetherlandsEmbassySave the Children Sweden, communications from Save theChildren Sweden’s programme staff in KenyaStarling, S and Murungi, J (2005) Final Evaluation, Save theChildren UK Kenya Programme, Save the Children78

4 GOOD PRACTICE EXAMPLES OF COMMUNITY-BASED RESPONSES ●5 EthiopiaDiversion by police of children in conflict with the law tocommunity-based correction programme centresSummaryThe community-based correction programme inEthiopia supports diversion by the police of caseswhere a child aged 9–15 years has committed a firstoffence or petty offence. The programme bringstogether police and community workers with families,the child and other key individuals (includingteachers) to provide intensive and individualisedsupport for the child in community centres. Supportincludes help with studies, vocational opportunities,and support to parents in good parenting skills aswell as recreational opportunities. The programmeis specifically devised to prevent children beingcriminalised and entering the formal justice system,where violence against children is common.BackgroundThe law concerning children in conflict with the lawin Ethiopia is set out in the Ethiopian Penal Code1957. The minimum age of criminal responsibility isnine years. Those aged 9–15 years are considered aschildren, while those aged 16–17 years are treated asadults, although there are provisions for mitigationby the judge; these children cannot receive lifeimprisonment or the death penalty. The codeemphasises that cases involving children should beprocessed ‘immediately’, although no specific time isstated. After arrest by the police, all stages in theadministration of justice, including investigation andprosecution, are carried out solely by the judiciary.Improvements made prior to the 1974 revolution weresoon reversed afterwards. The widespread involvementof children in political activities led to many beingheld in adult prisons and exposed to torture to extractinformation about their ‘anti-revolutionary activities’up until 1991 when the revolutionary regime wasoverthrown. As a result of the UN Committee onthe Rights of the Child’s Concluding Observations(2001), the 1957 code was revised. The Revised PenalCode that is soon to come into force will not changethe minimum age of criminal responsibility butwill prohibit corporal punishment, and lays downthe conditions required if children are detained,emphasising that children should be kept in separatefacilities. Currently, it is not uncommon for childrento be detained with adults.In Addis Ababa, during the three years from 1999 to2001, an average of 4,529 children came into conflictwith the law per year. Of these children, 99 per centwere males and 14 per cent were between 9 and14 years. Among these children, 81 per cent wererecorded as living with their parents, and 45 per centas having dropped out of school.Development of the diversionprojectIn 1997, Save the Children Sweden initiated a pilotChild Protection Programme with its partner Forumon Street Children-Ethiopia (FSCE). The ChildProtection Programme is headed by a police officerwho works with FSCE social workers. The overallobjective of the programme is to improve the situationof children who are abused or at risk, includingchildren who come into conflict with the law (CICL).Its focus addresses prime issues concerning children’sjustice including the protection, prevention anddiversion of CICL and the improvement of theadministration of justice, namely:• prevention of child abuse and exploitation• establishing Child Protection Units (CPUs) inpolice stations79

● THE RIGHT NOT TO LOSE HOPE• advocacy for an improved administration ofjuvenile justice in Ethiopia to be in accordancewith the UNCRC• abolition of the use of corporal punishment bythe police and the judiciary• strengthening local capacity to respond to theprotection rights of children• developing innovative community-based pilotprojects to divert CICL from going through theformal legal system.The CPUs set up in ten police stations in Addis Ababain 1998 are the driving force behind improving theway CICL are treated, especially with regard todiverting children away from the courts, speeding upthe decision-making process, ensuring the separationof children from adults in custody and communitysupervision of CICL while in the care of their parents.The CPUs are run jointly by the police and FSCE,with the latter providing counterpart social workstaff to give training, technical and funding support.In 1999, as a result of work with the Federal SupremeCourt to set up child-friendly courts, four JuvenileBenches were set up in Addis. Much of the successin working with the police and judiciary came fromthe integration of child rights in police training andthe exposure of government officials to study toursto learn from other countries’ experiences in workingwith CICL. The Child Protection Unit modelhas been replicated in regional towns throughcollaboration of the police and NGOs.As a result of the establishment of the CPUs, childrenwere being handled better and their cases were beingdealt with more promptly and appropriately. However,no support system existed that would lead the policeto feel confident in using diversion rather than goingthrough the formal justice system. The lack of clearprovisions in the Penal Code for the diversion of casesto an informal system of rehabilitation and correctionwas also an issue. The poor conditions in the remandhome, the length of pre-trial detentions, brutality bypolice and negative attitudes by the public towardsstreet children and the lack of follow-up when CICLwere released or given community sentences allpointed to the need for supportive facilities to beestablished.To respond to this need, in 1998 the Community-Based Correction Programme (CBCP) was set upin Addis Ababa for children in conflict with the lawaged 9 to 15 years who were first-time and pettyoffenders. When children are brought to the ChildProtection Unit having been accused of committingan offence, their parents are contacted, their case isinvestigated and a report compiled. The child’s caseis then assessed by a police officer and communityworker from FSCE and a decision is taken to:• release the child under the responsibility of parents/guardians; or• refer the child to the Community-Based CorrectionProgramme; or• present the child to a juvenile court.Children might also be referred to the CBCP centresby their parents as being unruly or truanting andthe centres may accept them if they feel they are atserious risk.Geographically, the project covers the city of AddisAbaba, which comprises ten sub-cities knownlocally as Kifle Ketemas. In each Kifle Ketema thereare a number of Kebeles, which are the smallestadministrative units in Addis Ababa. All Kebeles havemeeting halls, where the residents meet for differentfunctions. The CBCPs are located in these halls,usually with a small room annexed to the hall servingas an office for the volunteer and a place to storebooks, teaching aids and recreational materials. Theoffices are also used to hold discussions with parentsand to conduct counselling sessions.The volunteer who runs each centre on a daily basis issupervised by a FSCE community worker and teamleader. The volunteers are mainly young males whohave at least completed their high school education.They only receive transportation allowances. Highunemployment and the opportunity this work opensup for future jobs make these posts popular. Criteria80

4 GOOD PRACTICE EXAMPLES OF COMMUNITY-BASED RESPONSES ●for recruitment of volunteers focus on the ability ofthe volunteer to communicate with children, especiallyadolescents, and the personal characteristics of thevolunteer. The latter is important in that thevolunteers are expected to be good role models forthe children in the centres. The training providedon the job includes:• communicating with children• child protection• ensuring child participation• working manual of the CPU• record keeping• guidance and counselling• the UN Convention on the Rights of the ChildTheir tasks include ensuring that children come tothe scheduled programmes, attend school, and workto improve their relationship with their family andcommunity. The volunteers are also responsible forkeeping records and reporting on the progress of thechildren to counsellors, community workers andultimately to FSCE team leaders.The working methods in the CBCP centre consistof the following:• After referral by the Child Protection Unit,the child and his or her parents meet with thecommunity worker to check that they all consentto come to the centre.• A treatment plan is made and its content, thetimes the child will attend and the parents’monthly attendance to talk about the child’sprogress is agreed by the child, parent andcommunity worker and signed by them. A copyis kept at the CBCP centre.• The length of time that the child spends in theprogramme is determined by the communityworker on a case by case basis. On average,children are enrolled for about three hours perday on weekdays. They stay at the centre frombetween six months and two and a half years.• A typical day organised and led by the volunteerinvolves studying, tutorial classes, watchingrecreational films, playing indoor games andlearning skills, eg, playing musical instruments.• There are periodic meetings of the child withcommunity workers, teachers and police. Thesepeople discuss with the child the causes of his/heroffending behaviour and the expectations of his/herfamily and community. Children also discuss withvolunteers the reasons for their offending.• Periodic assessments are conducted on the situationof the children by collecting information fromparents, teachers and volunteers. The assessmentof the rehabilitation is based on such factors as thechild’s school attendance, educational performance,relationship with people in the child’s immediateenvironment, the child’s attendance andparticipation at the centre, personal care andattitude. The decision to discharge a child isinfluenced by these assessments.• Children who are of good behaviour and attendregularly are also rewarded by visits to the theatre,football, etc.• There are some links with NGOs for tutorials andwith businesses who provide apprenticeships.• The process of discharge takes place in a formalmeeting in the presence of parents, communityrepresentatives, police and social workers. Beforethe process of discharge, a simple discharge formis filled in, with the purpose of handing over thecare of the child to the parents. This also enablesthe staff to compile contact information ondischarged children.Impact of the modelOn children• Ten Kebeles (smallest administrative unit) out ofthe 100 that exist in Addis have CBCPs, althoughthey also serve one or two neighbouring Kebeles.Since 1998, 1,510 CICL have been referred to theCBCP centres; of these, 1,035 (68 per cent) havesuccessfully completed their correction programme,while 475 (31 per cent) have dropped out. Onaverage, 30–40 children attend the programme ateach of the ten centres at any one time.• Only about one per cent of CICL reoffend whilestill on the programme. More than 75 per cent of81

● THE RIGHT NOT TO LOSE HOPECase study: EliasElias is a 14-year-old boy who dropped out of school. He had very little supervisionfrom his mother as she spends a lot of time in the small market where she sellsfirewood. He was reported to the police by his mother after repeatedly stealing smallamounts of money from her.The police officer who interviewed Elias recommended that the boy be referred tothe Community-Based Correction Programme, which is located near his home. At thecentre, his mother signed a treatment plan and agreement that Elias should reportto the centre five times a week to participate in the programmes. In the centre, hereceived counselling and tutorial support, after which he was enrolled in a formalschool. As per the agreement in the treatment plan, his mother went to the centre tofollow up on his developments and to report on his behaviour at home.The centreprovided school fees and educational materials and the volunteer established closecontact with Elias’s teacher at the school.By the end of the first year, Elias showed a great deal of improvement in his behaviour,academic performance and his self-esteem.The staff at the centre decided that Eliasmight still need additional support and supervision, thus it was agreed that he shouldcontinue to go to the centre but on a less regular basis.The volunteer at the centrearranged for Elias to be transferred to a government school where education was givenfor free. It was also arranged for Elias to volunteer to work in a leather workshop.Although he was not paid for his services in the workshop, he was able to learn skillsin leather work.Four years after his first enrolment in the centre, Elias was discharged from theProgramme, and still continues to excel in his school work. As part of his discharge,the centre provided him with leather work equipment, with the agreement that Eliascontinues to earn some money to support himself to continue his education.In an interview by a journalist researching on a model youth programme, Eliasexpressed his wish that the government encourage young people such as himselfto be engaged in productive activities.the children go back to school after the completionof their correction period. This is due to the factthat almost all the CICL are between 9 and 15.Diversion to the centres helps most CICL tocontinue with their education.• The time a child spends at the CBCP is usuallybetween six and nine months. If behaviouralchange is noticeable within this period, the childwill be discharged. If there is insufficient progress,another correction period will be given to the childwith the approval of the Child Protection Unitco-ordinator. However, in most cases children showa remarkable behavioural change within the six tonine months.• By being diverted to the centres, children inconflict with the law are not exposed to the harshtreatment and incarceration they might otherwisereceive.On parents• Parents are involved in their child’s attendance atthe centre and in drawing up the treatment plan.82

4 GOOD PRACTICE EXAMPLES OF COMMUNITY-BASED RESPONSES ●The parents agree to report to the centre on thebehavioural and educational progress of theirchildren at least once a month.• The social workers/community workers helpthe parents understand the causes for theirchild’s offending and identify the support neededfrom the parents. Based on this, the parentscontribute to the rehabilitation of the child byencouraging the child to go to school and tothe centre regularly, by keeping a closer eye onthe child when at home, giving more love andattention, especially by setting aside time to talkand listen to the child, and guiding him/herappropriately.On institutions• Although legal provisions do not explicitly allowfor diversion by the police, almost 99 per cent ofthe cases come from them.• The police run the Child Protection Programme,under which the Community-Based CorrectionProgramme falls. They have taken on boardpartnerships with FSCE and other NGOs in therunning of CPUs in police stations. By 2004, theCPUs evolved from being an NGO-led initiativeto being part of the formal structure of the PoliceCommission.• The police benefit from diversion as it saves themboth time and money by not taking the childrento court.Lessons learned and challengesInformal settlements are the socio-cultural norm inEthiopia, with neighbourhood elders active in thiswork. This way of operating in the communitytherefore resonates with traditional practice. Thearrangement by which community elders advisedCICL proved useful but it has stopped because ofrestructuring in the sub-cities. It is hoped that it willbe re-activated.Multi-level advocacy with duty bearers has led to theidea of diversion being accepted by many. But theMinistry of Labour and Social Affairs, which ismandated to work with CICL, has not becomeseriously involved, nor has the judiciary.The project has tried to involve the Addis AbabaSocial Affairs Office, where the project is located, toinstitutionalise the diversion programme in its formalstructure but the process is very slow with no concreteresults so far. There is a plan to organise a nationalworkshop based on the document Diversion as GoodPractice to lobby for the legalising and implementingof diversion.The use of the Kabele halls as centres provideslegitimacy to the diversion process as well as authority,despite the fact that the process is not yet provided forunder the law.The centres strive to establish closer relationshipsbetween parents and their children and this is seenas a key element in the programme.The lack of follow-up after the children leave thecentre means that there is insufficient knowledgeabout how they are progressing longer term andif they have kept out of trouble. There is also nofollow-up for those who drop out, so that there islittle known about the reasons for dropping out ofthe programme.Key elements of this good practice• The police have become committed to theestablishment and replication of well-trainedChild Protection Units, within an appropriatelywell-organised police linked to other agencies andto the Community-Based Correction Programmecentres to promote diversion.• By starting with the younger offenders (9–15-yearolds)who have committed petty or first-timeoffences, the diversion programme has been ableto enlist the police and public support.• The development of the Community-BasedCorrection Programme centres is based on a83

● THE RIGHT NOT TO LOSE HOPEsix to nine month intensive period ofinvolvement. This includes: reaching anagreement for the child’s rehabilitation with thechild and his/her parents; support to the childin achieving this by the volunteer workers andothers, with the integral assistance of parentsand the emphasis on returning to school.• Despite there being no formal mandate fordiversion by the police, they are activelypromoting it as a result of effective training,liaison and support, and no doubt in partbecause of its success.• The NGO working with the programme has set upa well co-ordinated support system at the ChildProtection Units for the assessment of CICL,and later when they are at the Community-BasedCorrection Programme centres (rehabilitationagreement and its implementation, periodicassessment and formal discharge exercise) as wellas supervising the volunteers at the centres.• The training of the police and volunteers hashad practical objectives, which they can see arerelevant to their work.SourcesSave the Children Sweden (2005) Diversion of Children inConflict with the Law from the Formal System – a Case Studyfrom Ethiopia, paperSave the Children Sweden, communications from Save theChildren Sweden Kenya programme staff84

4 GOOD PRACTICE EXAMPLES OF COMMUNITY-BASED RESPONSES ●6 ChinaThe Appropriate Adult scheme: supporting diversion andreintegration in an urban communitySummaryThe Appropriate Adult scheme in Panlong District,China, provides for full-time and trained adults tointervene as child advocates during the interviewstages by the police and the initial determination ofthe case. The Appropriate Adults are not only there toensure that a child’s rights are respected at this crucialstage but also to provide a social assessment of thechild, link children to their families, support themthere and work with the police, the judicial bureauand the Committee for the Protection of Minorsto support possible diversion opportunities andnon-custodial measures for children pending thedetermination of their case. The Appropriate Adultsscheme represents an important example of a model,originally from the UK, being adapted to supportthe justice and social welfare system of anothercountry, as well as community workers, in ensuringchildren’s rights are respected and children divertedwhenever possible.BackgroundThe minimum age of criminal responsibility inChina is 14 years but children who do offend underthis age are liable to administrative penalties. TheCriminal Law of the People’s Republic of China(Article XVII, iii) states that the “punishment ofoffenders between 14 and 18 should be mitigated”.According to Save the Children UK, most crimescommitted by children relate to stealing, includingtheft from stores and from the person (withoutviolence). The next most common is violence againstthe person, often against another child, and alsoattacks to rob someone of their mobile phone. Thereare very few offences in other categories, but there aresome concerning drug possession and supplying. 127A Chinese newspaper report stated, “According torelevant statistics, more juvenile offenders are beingarrested every year. They represented 9.1 per cent ofall criminal suspects across China in 2003. However,an independent juvenile justice system is yet to beestablished for the 360,000,000 juveniles of China.” 128Government data on this issue is not made public andtherefore it is impossible to assess trends in juvenileoffending. At present, there is no national system ofseparate juvenile courts for children except in a fewplaces under a local arrangement, eg, Beijing andShanghai.The Law on the Protection of Minors (1991) looksat various aspects of protection, including judicialprotection (Chapter 5), and how children who comeinto conflict with the law should be treated. As aform of correction, education is emphasised beforepunishment, as are “persuasion and redemption”.Other treatment methods mentioned are discipliningby parents, the setting up of “special organs ordesignate special persons to handle cases”, suspendedsentences and fixed terms of imprisonment separatefrom adults.The Central Youth League and the Beijing MunicipalYouth League are currently making proposals foramendments to the Law on the Protection of Minors.The police and prosecution departments alreadymake use of diversion in practice when decidingrespectively not to send a child either to the prosecutoror the court. Both agencies primarily use a system ofcautions, re-education back in the child’s communityand occasionally pre-court mediation. Prosecutorsdivert many children in conflict with the law (CICL)who are referred to them. There is currently nostatutory social service provision that serves CICLin China.85

● THE RIGHT NOT TO LOSE HOPEThe development of the modelThe community-based and multi-departmental YouthJustice Diversion Pilot Project was launched in 2002in Panlong District of Kunming, the provincialcapital of Yunnan Province in south China, by thePeople’s Government of Panlong District and Savethe Children UK. The overarching aim of the project,which was revised in 2004, is: “To improve justice forchildren in China and to ensure the implementationof the Convention on the Rights of the Childespecially article 40 – dealing with the administrationof justice.”Panlong is one of four districts in Kunming. In 2004its residential population was 450,000, with about100,000 floating migrant population. Since then itsarea of jurisdiction has been increased 20 times tocover rural areas as well. In the six-month period fromOctober 2004 to March 2005, a total of 196 youngpeople (aged from 14 to 18) were arrested in thePanlong district on suspicion of being in violation ofthe law or of committing a crime. 129 Of this number,88 were released without further action being taken,including those who were diverted at the police stage.The Appropriate Adult scheme in the Panlong districtyouth justice pilot project is based upon practice inthe UK, which stakeholders in the project learnt aboutwhile on a study tour there. In the UK, the 1984Police and Criminal Evidence Act states that whenevera child or young person under the age of 18 yearsis interviewed by the police, an ‘appropriate adult’should be present. This would normally be the parentor guardian of the child. If for any reason the child’sparent or guardian is unable or unwilling to attendthe police station, the police must ensure that anotherappropriate adult attends the interview. This personcan be a social worker of a local authority socialservices department, or failing that “some otherresponsible adult aged 18 or over who is not apolice officer or employed by the police”. 130The partners in the Panlong district youth justiceproject, Save the Children UK and the PanlongDistrict Government, decided to build upon thisexample of good practice, but to adapt and expandthe role of the appropriate adult to fit the Chinesecontext. In China, parents or relatives are rarely calledto attend any interviews carried out by the police withchildren suspected of having committed an offenceand often would be unable to attend. At the sametime, the lack of social workers or lawyers means thatchildren would generally be interviewed without thepresence of another adult party that could ensure thatthe child’s best interest was taken into account.The project also aims to strengthen and encourage theuse of diversion at every stage of the judicial process,namely at the police, prosecutor and court stage.Experience in Panlong has shown that diversion atthe police stage tends to be most effective, particularlyin preventing a child from being held in a custodialsetting and appearing in court.The Committee for the Protection of Minors,Panlong District, issued an Official Paper (No.1,2005) which confirmed the use of Appropriate Adultsand circulated an appendix manual setting out howthe Appropriate Adult scheme should operate.Under the functions of an Appropriate Adult it stated:“The Appropriate Adult Scheme refers to amechanism upon which a group of full-timeappropriate adults are engaged to work through aninter-departmental channel to effectively protect ayoung offender’s legal rights and proactively helphim or her to be dealt with through alternatives tocustody and reintegrate him or her back into thecommunity, as well as cooperate with families,schools and communities to educate, move andsave children once in conflict with the law.The Scheme encompasses three functions asfollows:1. To protect young offenders’ legal rights.2. To engage in judicial diversion for helpingyoung offenders be dealt with throughalternatives to custody.3. To co-operate with relevant authorities tosupervise, help and re-educate diverted childrenthrough a community-based corrective system.”86

4 GOOD PRACTICE EXAMPLES OF COMMUNITY-BASED RESPONSES ●Appropriate Adults are employed by the PanlongCommittee for the Protection of Minors. They musthave certain qualifications, namely be over 20 years, ajunior college graduate, healthy, keen on work withchildren and with experience of doing so. Those withsocial work, teacher, psychology and law training areencouraged to apply but not those working full-timewith judicial bodies or police. They work with bothchildren in conflict with the law and children subjectto administrative penalties who are below the age ofcriminal responsibility.Specifically this amounts to:• being called to the police station when the policewant to interview a child, recording that interviewand stopping any misconduct by the police thatimpairs the legal rights of CICL• keeping the child informed about his or herlitigation rights• learning about causes of the offence and the child’sfamily background from the child, as well as theviews of parties concerned, including the victim,and writing a comprehensive report for advisingthe relevant authorities on how to treat theyoung offender• seeking legal aid service for children who cannotbe diverted from the formal criminal justicesystem• helping with the child’s re-education inco-operation with the police, community andschool when the young offender is diverted• helping with guardianship for the child andkeeping a record of his or her behaviour on bailor during probation for the relevant authorities’reference• respecting and protecing the privacy of childrenconcerned• meeting weekly to discuss their work andproviding a report of what they have done• being supervised and managed by the Officeunder the Committee of Protection for Minors,Panlong District.Before the recruitment of the full-time paidAppropriate Adults, a number of workshops were heldfor all those interested to give potential applicantsmore information about the youth justice project, therole of the Appropriate Adult, and to share experiencefrom an international perspective. About 30 peopleattended each workshop, including officers from theStreet Affairs Committees who do much of the socialwork in the community.Following the workshop, formal selection procedurestook place, and government partners and Save theChildren staff members interviewed candidates.Eight people were appointed to join the two existingfull-time Appropriate Adults. The new members ofstaff started work in early May 2005. An inductionprogramme was arranged, which included visits to thelocal community and time spent with the EducationDepartment and the Judicial Bureau, which now holdsresponsibility for children diverted from the justicesystem at the prosecutor and court stages. The newlyappointed Appropriate Adults visited a number ofthe local police stations within the Panlong district,accompanied by members of the project team.The work of the Appropriate Adults has been assistedby the establishment of a Community Children’sCentre, which will provide a place for AppropriateAdults and others to meet children and for activities,group work and counselling to take place involvingCICL. The centre was set up in July 2004 and isopen after school on weekdays, at the weekendsand during holidays.Impact of the modelOn children• Until May 2005 there were only two AppropriateAdults; now there are ten. During the six monthsup to March 2005, of the 84 children arrested forbreaching the criminal code, 23 cases had beenattended to by Appropriate Adults.• Of these 23 cases, 8 children were diverted.The cases of three diverted children built up theconfidence of the government towards the schemeand received a good press. The details of one ofthese cases are given overleaf.87

● THE RIGHT NOT TO LOSE HOPEHow will juvenile offenders return to society?‘Diversion’:A New Rehabilitation ModeQian Canming, Journalist of Spring City Evening Paper,Kunming 8 September 2004Sixteen-year-old Liu Ming (alias) is a senior grade two student from a vocational schoolin Kunming.This semester, he amazed the entire class with his mid-term exam results: astudent at the bottom became the top one! Yet he was just expelled from school inMarch this year for incorrigible fighting, truancy, and disrupting the order of school. InApril this year, in order to get money for computer games, he and another two of hiscompanions robbed a cyclist of his mobile phone, bicycle and cash, which valued morethan 2,000 yuan in total.The police caught one of them on the spot. Accompanied by his father, Liu Mingsurrendered himself to the police on the next day. His confessions helped the policearrest the third suspect. In view of the fact that it was the first time he committed anoffence, the project office (the Donghua Community Children’s Centre) suggested tothe Public Security Bureau and procurator that Liu Ming should be ‘diverted’.Commenting on the changes on Liu Ming, Mr Wang, Director of the Department ofMoral Education of the school, described the changes as unimaginable: it wasunimaginable that an offender who’d been expelled from school could come back toschool, that he’s changed so radically since he returned to school, that he’s made suchrapid progress, and that he’s set an example for his fellow students.* * *An extract on the same case reported on 29 June 2004Community-based Rehabilitation Enables Law-breaking Studentto Start Life AnewPeng Tingting, of Wen Wei Po,a Hong Kong & mainland China paperNot long after he was expelled from school, 16-year-old Liu Ming was arrested forrobbery on Valentine’s Day of 2004. He beat and robbed his victim during the nationwidecampaign to punish robbery and forcible seizure of money or property. Had it notbeen for the Youth Justice Pilot Project Office, he would have been living behind bars.Save the Children UK and the government departments of Panlong district set up theYouth Justice Pilot Project Office in order to divert juvenile offenders from the judicialsystem. Liu Ming was detained for one month but did not end up in prison because ofthe efforts made by the project staff, local police, and the school authorities.Theydiscussed the whole situation, released him on parole, and let him return to schoolwhere he was to be helped and supervised, giving him the opportunity to startlife anew.Before Liu Ming was put to trial, the project office and the Public Security Bureau helda meeting in a family-like atmosphere that gained Liu Ming the sympathy of the victim’sfamilies. A compensation agreement was reached as a result. In the end, Liu Ming wassentenced to one-year imprisonment with a one-year suspension of sentence.88

4 GOOD PRACTICE EXAMPLES OF COMMUNITY-BASED RESPONSES ●On institutions• In March 2004, the Political and Law Committeeof Panlong district officially approved theAppropriate Adult scheme. In June 2004, thePolice Sub-Bureau issued a document endorsingthe Appropriate Adult scheme and requiring itsimplementation in every police station in Panlongdistrict. In September 2004, the Judicial Bureauagreed to accept responsibility for diversion casesat the prosecutor and court stages.• In 2005, the project’s Leading Group issued adiversion protocol, and the Minors’ ProtectionCommittee issued a working manual for AppropriateAdults. These important developments mean thatdiversion practice is now formalised within thejustice system, and they have made an importantcontribution to the sustainability of the model. Thediversion protocol focuses on bail and states that“non-custodial measures of bail… should be giventop priority when dealing with young offenders’cases”. It also states that although bail may startwith low-risk cases, with experience it may moveon to those of medium and high risk.Lessons learned and challengesAn enormous amount of networking, training andadvocacy has gone on in order to persuade governmentbodies to support the Appropriate Adult scheme. Thework on this pilot, launched in 2002, emphasisesthe importance of a long-term approach to developconfidence, skills and the political will to try whatmay be deemed a more risky approach than the usualpunitive response to youth offending.Earlier in the project, the Appropriate Adult wasseen as being a rather neutral person in relation to thechild but now he/she is seen more as a befrienderand mentor.The development of the scheme illustrates theimportance of well thought-out study tours to viewother countries’ experiences of tackling problems,while at the same time allowing for the adaptationof good practices in the local context to ensure thatthey are appropriate and relevant to the situation.This ‘grafting’ process that enables the developmentof local solutions requires more time but is crucial toits eventual legitimacy and efficiency.There has been good use of the media in support ofwhat the youth justice diversion project is doing, suchthat the project has received a good press and thatthere is better public understanding and awareness ofits aims.The project shows the advantage of responding toconcern over juvenile offending and showing how itcan be addressed to assist CICL in a way that is notonly beneficial to the individual but also cost-effectivein the longer term, as opposed to the use ofincarceration.Over the next year, it will be necessary to developdata to demonstrate the cost-effectiveness of theAppropriate Adult scheme so as to ensure that the costof the system, including the salaries of the full-timestaff, is fully integrated into government budgets toensure longer-term sustainability.By making these Appropriate Adult posts full-timeand paid there is plenty of competition for them,which should guarantee a high quality of person.Appropriate Adults are an example of the type ofstatutory social service personnel China needs toemploy to ensure that community-based rehabilitationin the best interests of CICL is promoted.Key elements of this good practice• The Appropriate Adult looks after the bestinterests of the child in conflict with the law atcertain strategic points in the justice process, ie, atthe initial interview with the police, in their reportto the court and on return to the community ondiversion or after release from custody withreintegration and support.89

● THE RIGHT NOT TO LOSE HOPE• The success in obtaining the multi-departmentalbacking of senior district government bodiesand the police, and the Judicial Bureau’s publicendorsement of the use of Appropriate Adults inall the district police stations.• The development of a comprehensiveMemorandum of Understanding with thePeople’s Government of Panlong District.• The training and careful process by whichAppropriate Adults were selected.• The close work and recruitment of members ofthe Street Affairs offices.• The project has fed its objectives, methods andlearning into the national review of justicelegislation for juveniles.• The production of a manual for the AppropriateAdults scheme by the Committee for Protectionof Minors.• The careful adaptation and piloting of anothercountry’s model has enabled the development ofa local solution that is relevant to its context andsupported by all the relevant stakeholders.Notes127Information from a survey conducted by the Yunnan UniversityLaw School, 2003128Spring City Evening Paper, Kunming, 10 July 2004129The legal framework in China distinguishes between violationSourcesCommittee for the Protection of Minors, Panlong District,Kunming City, (2005) The Manual for the Appropriate AdultsSchemeGovernment of China (1991) ‘The Law of the People’s Republic ofChina on the Protection of Minors’Johnson, S (2005) Example of Good Practice in Diversion ofChildren from the Formal Justice System, paper, Save the ChildrenUKLeading Group of the Youth Justice Pilot Project, Panlong District,Kunming City (2005) ‘The Protocol of Diverting Children inConflict with the Law, Panlong District (trial)’People’s Government of Panlong District and Save the ChildrenUK (2004) Memorandum of UnderstandingSave the Children UK (2004) Youth Justice Pilot Project Yunnan,ChinaSave the Children UK, Brief over the Donghua Community Centrefor Youth Justice Pilot Project in Panlong District, paperSave the Children UK, communications from Save the ChildrenUK programme staff in ChinaWest, A (2004) A Children’s Justice Advocate and Mentor:Community-based diversion, protection and prevention throughlocalising the Appropriate Adults scheme in China, Save theChildren UKof the law in relation to public security, which means breakingadministrative regulations, and breaching the criminal code, whichis more serious1301984 PACE Code C 1.7 (a) (iii) UK90

4 GOOD PRACTICE EXAMPLES OF COMMUNITY-BASED RESPONSES ●7 UgandaThe Fit Persons scheme: the involvement of volunteers to supportalternatives to incarcerationSummaryThe Fit Persons model in Uganda represents animportant model of community support for childrenwho have either been diverted, given a communitysentence or reintegrated into their families andcommunities. In a context where social servicesand probation services are simply not reaching theoverwhelming majority of cases, the Fit Persons aretrained and respected individuals who will supportand follow the child in their reintegration process,including within their families and schools. In caseswhere families are unable or unwilling to be aguarantor for the child, the Fit Person is able tostep in and even provide temporary foster care whilesearching for longer-term care options with the family.The model is important in that it recognises both thatdiversion and community-based alternatives are rarelyprovided to children who are facing care issues, andthat addressing care and protection issues is integralto finding solutions for children who have come intoconflict with the law.BackgroundUganda ratified the UN Convention on the Rights ofthe Child in 1990. The need for comprehensive childprotection legislation, including children in conflictwith the law, was addressed in the Uganda ChildrenAct, which was brought into force in 1997. It set theage of criminal responsibility at 12 years. The actaffirms that the guiding principles in making anydecision about its implementation should be therights of the child and the child’s welfare.A major thrust of the act is that children in conflictwith the law (CICL) whose offences are not veryserious should be dealt with and assisted within theircommunities rather than being taken to the courtsat the district or sub-county level. These courts areusually remote from where the child lives and moredistant from the context the child understands, leadto greater stigmatisation, ignore the opportunities formore informal resolution such as mediation, increaseexpense, usually lead to some form of detention orincarceration and make reintegration difficult.The act puts in place a number of checks to limitharm coming to CICL on the grounds that they arechildren and need to be protected and recognises thatthey are often pushed towards offending by economicand social factors. Some of these checks are throughprevention, as with the role of the Secretary forChildren’s Affairs, whose task is to look after thewelfare of children in the village. Others are throughdiversion, as with the powers of the police to cautionand exercise discretion, the local council courts –especially at village level – to mediate and givecommunity orders, the use of Fit Persons and therestrictions on children being held in detention.Most offending by children in Uganda is not of aserious criminal nature, although it is sometimes madeso by inappropriate legislation. Most offences bychildren could be resolved by the local council courtsand in this way avoid many of the shortcomings inthe administration of justice at the district level.In a study of 1,179 offences in 2000, theft was themost common offence (35 per cent), with defilementthe second most common (30 per cent). In a smallerstudy of 518 offences of CICL recorded by the policein 2004, defilement was 38 per cent of the total andtheft/stealing was 34 per cent. Drug-related offencesmay be the third most common offence. Defilement iswhen a male unlawfully has sexual intercourse with agirl under 18, for which the penalty is death (Penal91

● THE RIGHT NOT TO LOSE HOPECode 123), though not for children. The offence alsoapplies to boys under 18 having sexual intercoursewith girls under 18. Most of the above CICLdefilement cases appear to be between children ofsimilar age whose relationship is of a consensualnature. These cases have to be heard in the HighCourt. Once the plea is taken, the boy is detained andremains incarcerated for one or two years (as there is abacklog for High Court hearings) and then the casefrequently collapses as witnesses do not appear. It iswell known that there is frequently a financial motivein parents of girls bringing defilement charges.In eight districts where police records were recentlystudied, between three and five per cent of all casesconcerned children (aged 12 to 18). About nine percent of these CICL were girls. Adult prisons are stillbeing used to detain children pre-trial, which isillegal. Seventy-seven such children were recentlyfound detained in seven adult prisons.Local council courts, which come under the Ministryof Local Government and not under the judiciary, arethe courts of first instance responsible for dealing witha range of minor offences by children. Fit Personsare trained community members who can assistcourts both at village and district level by guidingand supporting CICL who face problems in theirreintegration at home, with peers, school or elsewherein the community.The development of the JuvenileJustice ProgrammeIn 2000, in response to the findings of a baselinesurvey in ten districts of Uganda in 1997, commentsfrom the UN Committee on the Rights of the Childto Uganda’s report of the same year and a situationalanalysis of the Juvenile Justice System, Save theChildren UK with the Ministry of Gender, Labourand Social Development and the Legal Aid Centreinitiated a Juvenile Justice Programme (JJP). Theprogramme covered the three districts of Gulu, Hoimaand Masaka and a major part of Kampala, and itsoverall goal was to facilitate the implementation ofjuvenile justice reforms enshrined in the Children Actand in particular to assist pilot districts in identifying,developing and strengthening services and structuresessential for this implementation. The Fit Personmodel quickly became a major pragmatic tool forassisting children at the local level where social servicepersonnel are few.The Fit Persons modelThe Children Act refers to the Fit Persons inArticle 91 (9): “Whenever possible, the court (Familyand Children’s Court) shall consider alternativesto remand such as close supervision or placementwith a fit person determined by the court on therecommendation of a probation and social welfareofficer.”In Kampala and Gulu, Fit Persons are sworn in by theChief Magistrate and given ID cards and appointmentletters. Being sworn in and taking an oath of allegianceis important, as Fit Persons can: act as surety for achild both at the court level and with the police; beentrusted with a child by the court when there are noappropriate carers available for the child and whereotherwise the court might wish to send the childto a remand home; escort a child from the policestation to his/her carers; and undertake counselling/mediation between the child and his/her carers andthe community.Fit Persons are identified by and recommendedfrom various sources such as the local councils,District Probation Officer, Community DevelopmentOfficer or a community-based organisation (CBO).All Fit Persons receive training – this varies from threedays in one district to a five-day residential coursein Kampala, plus a ‘training of trainers’ session for aselect group so as to carry out cascade training. Theclearest picture of the training and appointment ofFit Persons comes from Kampala. There, 225 weretrained in 2003. Three people were chosen fromeach parish and these usually consisted of theSecretary for Children’s Affairs and two othercommunity members. Many were already trained92

4 GOOD PRACTICE EXAMPLES OF COMMUNITY-BASED RESPONSES ●The roles and responsibilities of the Fit Persons include thefollowing:1. “Take custody of children in need of care and protection and those charged withoffences who may need such a service on the request of local councils, probationofficer, police, court or any other rightful authority.2. Stand surety for children charged with offences at police and court in order forthem to be granted bond/bail.3. Care for and support children placed with them including socialisation orre-socialisation of such children through guidance and counselling.4. Assist in tracing for parents, relatives of abandoned children and those charged withoffences for the purpose of resettling and uniting those children with their kin.5. Support children charged with offences released on bond/bail and their parents/guardians through guidance and counselling so that they report back to police orcourt as required.6. Intervene in cases of child abuse and work closely with parents, members of thecommunity and local councils in their areas to promote the rights and welfareof children.7. Monitor the situation of children in families and provide guidance and counselling toparents/guardians on proper care and protection of children.8. Co-operate and liaise with other agencies like local councils, probation office, police,court, etc, in working for the promotion of the rights and welfare of children intheir localities.9. Record all cases of children handled and make reports to community-basedservices officers at sub-county level.”(From Roles and Responsibilities in Care and Protection of Children,Save the Children UK)mediators. Fit Persons and mediators are volunteersalthough they do receive some travel money.In practice, Fit Persons are involved in cases ofchildren facing care and protection issues as much asin cases of children coming into conflict with the law.In Gulu and Masaka districts, Fit Persons have beeninvolved in most CICL cases brought at the localcouncil court level. In certain police stations,eg, Katwe in Kampala, they also have taken on amajor role in checking whether children are beingdetained and in locating their parents. They havealso provided temporary foster care for children whocannot immediately return home. Their main role,however, has been in offering guidance and support,and mediating between a child and his/her parents andwith the school.In many cases, the family of the child may not bewilling or in a position to be guarantor for the childeither because of family conflict, shame and fear ofretaliation by the community or because the offencetook place within the family. In other cases, the childmay be separated, abandoned or have no family. It isin those cases that the Fit Person takes on the broader93

● THE RIGHT NOT TO LOSE HOPErole of carer and even foster parent for a period or actsas a mediator to support the child’s reintegrationwithin the family.The profile of most Fit Persons is that they aremainly individuals in their fifties and sixties. Themajor driving force for them to do this work is oftena strong religious commitment. Usually they are notparticularly wealthy people but committed people intheir communities who can at least afford the basics.If they are married and are willing to give temporaryfoster care, there must be agreement between thespouses to look after a child and the household shouldhave sufficient shelter, food and bedding for anadditional child. Investigations as to a prospective FitPerson’s suitability to provide care and protection forchildren is carried out before any appointment.The Fit Persons are supporting children who havecommitted a range of offences, including more seriousones. In Gulu, for example, Fit Persons associated witha community-based organisation called WALAA wereinvolved in 96 cases, and over two-thirds of thesecases were equally made up of theft and assaults. FitPersons operating with the support of another CBO,LAPEWA, were supporting children who were accusedof more serious offences, including 50 defilementcases, 10 murder and 15 rape, as well 50 for theft.Fit Persons in Hoima, only one had reoffended;of 54 supported by Fit Persons in Kampala, 11 hadreoffended; while of the many assisted in Guluthere was no record of any of them havingcommitted further offences.• Fit Persons were also active at some police stations.At Katwe police station in Kampala, Fit Personsmade 82 visits to the station in 2004 to checkwhether children were being detained; that is1.6 visits per week and 17 children were assisted,usually in the tracing of their parents/guardians.On institutions• The police and the courts are more disposed tocaution and release a CICL on bail or to mediationor support in the community if they know there issomeone trained who is there to assist thesechildren.• Fit Persons are most active in a context where theyare supported or are operating under the auspicesof CBOs.• There is quite a range in the number of childrena Fit Person is responsible for. In Kampala, theeight Fit Persons interviewed were supporting anaverage of seven CICL each, while the three FitPersons in Hoima had 12 cases of children eachand one Fit Person in Gulu was responsible for52 CICL.Impact of the modelOn children• Many local council courts refer CICL to FitPersons and mediators to try and resolve problemsbetween the offender and victim before they cometo the court. In Masaka district, local councilmembers said that 95 per cent of cases are solvedin this way and this seems also to be the case inGulu and Hoima.• CBOs, like WALAA in Gulu, were involved with96 children in conflict with the law from 2003–04,while LAPEWA was involved with 189 in 2004.• The reoffending rates of CICL supported byFit Persons is low. Of the 42 CICL supported byLessons learned and challengesIf diversion is to address a child’s outstandingproblems and include rehabilitation, prevention andreintegration, a person committed to giving the time,support and guidance is required. This is particularlycrucial where the child’s family is unable or unwillingto play this role. The Fit Persons fulfil this role,including at times acting as temporary foster parents,at minimal expense. However, a level of fundingis required for training and upgrading, transportand meetings at a minimum. The issue of fundingremains one of the biggest challenges to the model.Funding needs to be secured from the central and94

4 GOOD PRACTICE EXAMPLES OF COMMUNITY-BASED RESPONSES ●local government and whenever possible with thehelp of NGOs and the private sector, to ensuresustainability.Fit Persons see their role also as raising awarenessamong the community about their work, the rightsof children and the law. They feel their work isappreciated by most community members as theyfulfil an important community role.The Fit Person model should be scaled up at thenational level and national policies and standardsshould be drawn up. A national system ofaccreditation for all Fit Persons should be put inplace on the lines of that used in Kampala and Gulu.A national policy statement on ‘The Roles andResponsibilities of Fit Persons’ should be agreedbetween the relevant ministries (Local Governmentand Social Development).A nationally accepted management system needs to bein place to supervise and collate data received from FitPersons and the Department of Community Servicesunder the Ministry of Gender, Labour and SocialDevelopment, which should formally accept itsoverseeing of the work of Fit Persons through theirstaff, eg, the community development officers.CBOs have shown themselves to be effective bodiesfor the recruitment of Fit Persons and for maintainingtheir motivation. These CBOs are mainly women’sgroups but individuals from both sexes and from allbackgrounds and status should be encouraged andsupported to become Fit Persons.One challenge has been the misunderstanding amongsome Fit Persons of the concept of voluntarism,especially in Kampala and other large towns. Despitebeing told repeatedly that they were volunteering andtheir signing a form to this effect, it has been hard forsome Fit Persons to accept, and co-ordinators have hadnumerous requests for payment.Key elements of this good practice• The Fit Persons provide a crucial alternative to theuse of detention, particularly in cases where thefamily is unable or unwilling to stand as guarantorfor the child. It is children in those cases who areparticularly at risk of detention on remand orpost-sentence. Fit Persons also play an importantrole in supporting successful reintegration andpreventing reoffending.• Fit Persons network closely with the families,CBOs, schools and local councils, as well as withcommunity development officers and probationofficers. They are an important focal point forworking with children at risk of offending and asco-ordinators of a range of community services thatcan support children in conflict with the law.• The fact that Fit Persons are local people is crucial.They are local to the area where the child lives,probably already know something of the child’sown circumstances and so are realistic as to how tohelp and how best the community can assist.• As respected members of the community, if theyseek the support of others for the child theirrequest is likely to be responded to.• The work of Fit Persons and mediators and theCBOs who promote and foster their work isincreasingly recognised and appreciated by thelocal population and sub-county and districtadministrations. In Gulu, the district authorityis already extending financial support to CBOsin recognition of this and other work theyare doing.SourcesBushara, J (2003) Review of Ireland Aid Support of the JuvenileJustice Programme in Uganda 1999–2003, DevelopmentCooperation IrelandKakama, P (1999) Evasive Justice: A study of children on remand inNaguru Remand Home, Kampala, Save the Children UKKakama, P (1997) Children in conflict with the law in Uganda,Save the Children UK95

● THE RIGHT NOT TO LOSE HOPEKakama, P (2002) Deprivation of Basic Needs as a Motivator forCriminal Activities among Children, Save the Children UKNordic Consulting Group (U) Ltd (2003), An evaluation of theJuvenile Justice Programme, 2003, Save the Children UKParry-Williams, J, Ekayu, P, Talagwa, R, Odong, S, Wanyama, Mand Otimodoch, J (2005), Comparative Study and Evaluation of theImpact of the Children’s Act in Relation to Children in Conflict withthe Law in Eight Districts in Uganda, Save the Children in Uganda,to be publishedSave the Children UK Juvenile Justice Annual Progress reports for2004 for Gulu by Alobo, A; for Masaka by Ruzena, RSave the Children UK, communications from Save the ChildrenUK programme staff in UgandaSave the Children UK and UNICEF (September 2000) JuvenileJustice in Uganda: Situation AnalysisUganda Law Reform Commission (2000) A study report on rape,defilement and other sexual offencesSave the Children UK (1997) Juvenile Justice Research Reports(baseline studies) undertaken in Kampala, Masaka, Lira, Kasese,Iganga, Moroto, Kibaale & Arua Districts96

4 GOOD PRACTICE EXAMPLES OF COMMUNITY-BASED RESPONSES ●8 Bosnia and HerzegovinaDiversion through the courts: community-level supervision atthe Chuka Rehabilitative CentreSummaryThe Chuka Rehabilitative Centre in Banja Luka,Bosnia and Herzegovina, supports juvenile judgesin making community-based rather than custodialorders. The centre operates as a place where childrenwho have been given intensive supervision ordersunder parents or under social services are supportedthrough a range of activities, including educationaland vocational opportunities, support for parent–childcommunication and parenting skills. The childrenparticipate in the overall running of the centre,including the appointment of the volunteers andstaff. Chuka also provides a focal point for theJuvenile Justice Unit of the Centre for Social Workto ensure better case management and follow-up inthe reintegration process, as well as enabling it toco-ordinate its work better with other support servicesavailable at the community level.BackgroundOne result of the violent civil war (1992–95) in theformer Yugoslavia, with its death toll in Bosnia andHerzegovina of about 250,000, is reported to havebeen the growth of violent behaviour among youngpeople. This was noted with concern by the Ministryof Social Welfare, together with their lack of servicesto cope with this trend. Unfortunately there is nonational data available to back up this statement.Poverty and high levels of unemployment after theconflict further exacerbated problems in families andreduced the opportunities for young people to obtainwork. In 1997, Save the Children UK noted that“in Banja Luka juvenile crime is on the increase andone-third of all crime is committed by 14–18-yearolds.The current system for dealing with this problemis through the court and the Centres for Social Welfarewith inadequate capacity and little provision fordiversion”. Although the Criminal Law and CriminalProcedure Law of the Federation of Bosnia andHerzegovina (BiH) (2003) allows for diversionarymeasures both before court and through communitysentences, it is not implemented in practice.In BiH the age of criminal responsibility is 14 years.Children aged between 16 and 18 who commitserious crimes can be sent to one of the two adultprisons in the country housing juveniles; those aged14–15 years cannot be sent to those prisons even ifthey commit such offences, but only to a correctionalhome. The police do not practise diversion but afterarrest hand the case to the prosecutor who decideswhether to initiate court proceedings or not. Apartfrom incarceration, judges can issue a reprimandor place a child under the intensified supervisionof their parents or the Centre for Social Work.However, there was until 1998 no rehabilitativecentre available to assist parents or social workersand as a result judges were reluctant to usecommunity supervision.Development of the diversionprojectBanja Luka, the main city in Republika Srpska, one ofthe two entities making up Bosnia and Herzegovina,has a population of 250,000 and had 98 children(14–17 years) who committed offences in 2004. Ofthese, 26 were reoffenders and 72 per cent were inschool. In addition there were 12 children under 14years but they were not criminally liable.Save the Children had placed an adviser with theMinistry of Social Welfare in both entities in BiH;the ministry in Banja Luka raised the issue of how itcould better cope with child offending. In 1998, theCentre for Social Work (CSW) in Banja Luka (which97

● THE RIGHT NOT TO LOSE HOPEcomes under the Ministry of Social Welfare) and Savethe Children UK, recognising the lack of resources andcapacities to respond to the growing issue of childrenin conflict with the law, decided to set up a pilotproject as part of a broader national programme onchildren’s justice.The pilot would focus on the development of anon-custodial centre for boys in conflict with thelaw as an innovative model demonstrating a children’srights-based justice system and services for children,to be integrated into state-supported services in BanjaLuka by mid-2005. The provision of direct servicesthrough the non-residential centre was complementedby training of the serving police and police cadetsthroughout BiH, prevention and educationprogrammes on juvenile crime and advocacy forpolicy reform in the juvenile justice and childprotection services.ChukaChuka is a non-residential centre for boys primarilyaged between 14 and 18, who are in conflict with thelaw. It was given its name in 1998 by the childrenattending the centre; in slang it has a number ofmeanings, including ‘heart’ and ‘streetwise’; Chukahas become accepted as its official title. It focuses onprevention, diversion and reintegration.The Juvenile Justice Unit of Banja Luka CSW has itsoffice in the Chuka premises and its two social workstaff oversee the Chuka programme and its currenteight volunteers, who do most of the day-to-dayinteraction with the children. These volunteers arethird and fourth year university students studyingpsychology and social work. They work in pairswith two groups of children. Two pairs lead on thetherapy group work discussing issues raised by theboys or themselves, or doing special workshops suchas assertiveness training. The other two volunteerpairs offer tuition support in education to enablechildren to finish school, and are in contact withthe school teacher, co-ordinating the schoolrequirements with the actual tuition work withchildren in Chuka, which is a major aspect of Chuka’sprogramme. For those who do not opt for a return toschooling, efforts are made to find them vocationaltraining. All the volunteer pairs run ‘free-timeactivities’ including regular sport activities, indoorgames, outside visits and links with outside clubsand NGOs, which children attend for football,computer lessons, English, etc.A boy has to agree to attend Chuka and the staff haveto agree to take him. Not all boys are seen as suitable,eg, if they committed a serious offence, need a lot ofindividual supervision or would be disruptive. Boysattend Chuka for a variety of reasons:• usually as a voluntary contractual part of a courtmeasure of intensified supervision after a criminalconviction• for assessment during preparation of a case pendinga court appearance• as part of social welfare supervision for boys under14 who have committed an offence but are notcriminally liable• as a ‘drop-in’ for children who have previouslyattended as part of a measure• for children who are deemed by social workers tobe seriously at risk of offending.For children aged 14–17 and in conflict with thelaw, their cases are referred to the CSW after theprosecutor has passed the case to the judge, whowill decide whether or not to proceed with the case.If the case is to come to court, the judge invites theCSW to prepare a social case history and to makerecommendations. The police have no official rolein that process and have no power to refer or divertchildren from it. If the CSW social worker thinks theboy would benefit from participating in Chuka andthe child wishes to attend, the social worker willinform the judge. If an intensified supervision order ismade with a verbal recommendation from the judgethat the child attends Chuka, then the child and hisparents have to be willing to sign a contract withChuka, which states their rights and responsibilities.Chuka is open four days a week for boys, with aseparate day for staff discussion and meetings with98

4 GOOD PRACTICE EXAMPLES OF COMMUNITY-BASED RESPONSES ●parents – the latter are seen as of great importance.If a judge learns from the CSW that a child offenderhas attended Chuka prior to the hearing and hasdone well, then the judge is more likely to makea community order and support the offender’scontinuing at Chuka. The juvenile judge andprosecutors in the Banja Luka Court are wellinformed about Chuka and promote the attendancethere of juvenile offenders under intensifiedsupervision orders by parents or the CSW.In 2005, the CSW will take over sole responsibility forChuka, which is in line with the aim of strengtheningstate services for children in conflict with the law.Impact of the modelOn childrenSince 1998, 20–30 children per year have beenengaged in Chuka activities. In the main the users areboys who have offended and are unemployed, havingproblems in school (skipping classes, negative marks,behaviour problems), neglected and have beenpreviously failed by social services. Many are petty butrepeat offenders. Others are children awaiting courtproceedings. Children are able to talk about crime andfamily issues, re-engage with the education servicesand also work at improving their relations with theirfamily. Between 2001 and 2003, 11 children onaverage have attended Chuka annually as part of anintensified supervision order.“No one forces us to come, I grew up in the streets,Chuka stops me losing nerves with parents!”(Chuka boy)“Nowhere else to be, we freeze in the street or wait fora junky to beat us up.”(Chuka boy)The reoffending rate of those attending Chuka in2002/3 was 7 out of 19 regular users. In 2003/4none of the seven boys who attended Chuka forsix months or more reoffended except one, whoat the time had been withdrawn from Chuka by hisparents. Three boys who attended for less than sixmonths reoffended.Among the boys included in the Chuka projectbetween April 2003 and September 2004:• two who were at risk of being sent to prisonwere not sent because their good behaviour at theChuka programme was reported to the judgebefore their trial• six who finished their involvement in Chuka havenot reoffended• six who were supported in their school activitiesby Chuka finished their education (five completedsecondary grades and one completed primary grade)• five were included in a pilot programme secondchance for education. All of them have finished theircourse at the school of catering.• Many boys stay in touch with Chuka for four orfive years.“My boy said to me that who enters Chuka will staythere. After he finishes his programme he will alwayskeep coming to share experiences.”(a mother)• Children participate in the overall running of theChuka centre and staff appointments are discussedwith them. They have been on interview panels forhiring volunteers and other staff.On parents• Parents are involved with the child in the makingof the contract to attend Chuka. Some parents,usually mothers, are involved in the rehabilitationof their children during the court order. Forexample, ten parents of Chuka-users involved ineducational activities participated in supportgroups aimed at improving parent-school andparent-child communication, parenting skills andparental exchange and support. There were a totalof 16 sessions. Some children noticed a differencein the quality of their parents’ support, which hadpreviously been poor.“My mother has more understanding and patience.”(a Chuka boy)99

● THE RIGHT NOT TO LOSE HOPEOn institutions• The aim of the pilot has been to integrate aquality, rights-based way of working with childrenat risk and in conflict with the law into statesystems and structures. The model appears to bebroadly promoted by social workers, police andthe judiciary.“Chuka is a new model, a new approach that wasunknown before. People from CSW quickly gotengaged. It has improved practice through literature,models and books.”(Director CSW)“We know that a judge knows if we are in Chuka wewant a problem to be resolved and it is good for usthat they are all connected.”(a Chuka member)• The model of Chuka has been accepted by theBanja Luka Municipality and is part of a cityplan for the Development of Social Welfarefor 2005–08.“We discuss Chuka at the Council – the pilot projectis now part of daily practice. It is in the financialand narrative plan; part of the budget is allocated toChuka. The approach of the CSW is now changedand budget lines have been accepted by managers.”(Director CSW)• Chuka is a practical example of what can beachieved through providing space and support tochildren in conflict with the law in the community,and has raised the understanding of diversion as aconcept and how it can support the best interestsof the child. Links made with local NGOs andyouth clubs have complemented Chuka’s work withthese children.• The Juvenile Court has, as a result of youngoffenders’ success at Chuka, shortened sentences,made a community rather than a custodial sentenceand referred children to Chuka to be involvedin its educational activities as an alternative to acustodial sentence.“Chuka is a half-way solution – a disciplinarysentence”, “Chuka is an implementable measure thatthe court could state.”(judge responsible for juveniles in Banja Luka)• Although the police do not currently practisediversion, since receiving training in children’srights, youth offending, prevention and diversionthey are interested in promoting these, particularlythrough their special units for children.Lessons learned and challengesOffenders seem to need at least 6–12 months toreceive the maximum benefits from attendance.Chuka gives children a secure place to stay whennot in school, which offers a variety of activities awayfrom pressure on the street, their peers, the policeand home.According to both CSW staff and the boys, havingthe volunteer third and fourth year university studentsfrom relevant disciplines to run the day-to-day eventshas been very positive because they are not much olderand can relate to the CICL. They have built up a goodrapport and children have shown a willingness to listento their advice. It is no doubt easier to be effectivewhen the numbers are small.“It is good for us but also for the students. It is goodfor them because they learn, it is good for us becausethey show us something, they teach us how to behave,new knowledge, conversation, we enrich ourvocabulary with them.”(a Chuka member)However, the high turnover of volunteers means thattraining is constantly required.By being with the children all day, the volunteers areable to give them a relaxed form of supervision, whichmakes it easier for the children to bring their problemsto them. The volunteers also get to know more about100

4 GOOD PRACTICE EXAMPLES OF COMMUNITY-BASED RESPONSES ●each child’s behaviour and what leads to problems,which can then be addressed at an appropriate time.Although Chuka’s programme is largely about assistingin the rehabilitation, reintegration and the reductionin further offending of offenders on supervision, thelack of a correctional centre in Banja Luka means thatit has been taken up as an alternative to custody for14–15-year-olds. There is a risk that if the correctionalcentre does become operational, this alternative tocustody may be ignored.The greatest challenge is being assured of governmentfunding and the human resources to implement therange of Chuka’s activities.Key elements of this good practice• Chuka gave CICL who wished to attend somequality, long-term support in a ‘safe place’ wherethey could reflect on their lifestyle, education andoffending, and be assisted in making positivechoices for their future.• Attendance at Chuka is solely based on thechild’s consent and commitment to be there andthe staff agreed that this was an important aspectof the process.• The emphasis on assisting children to return tofull-time education is very high and variousstrategies are in place to resolve the problemschildren face as a result of state restrictions andchildren dropping out of school. These are muchappreciated by the children and their parents.• Children have an important role in deciding rules,issues for discussion and in the selection ofvolunteers and staff.• Chuka is managed by a government department,not by an NGO, and so stands a greater chance ofsustainability and possible replication.• Chuka has been a springboard for demonstratingto criminal justice stakeholders a children’s rightsjustice approach and the benefits of diversion. Itprovides a community-based alternative wherethere was none before and as such empowers thejudiciary to be more child-focused and diversionaryin their approach.SourcesCentre for Social Work and Save the Children UK (2004) Reporton Evaluation of Project of Direct Work with ChukaDunn, A and Stevanovic, I (2005) Juvenile Justice ProgrammeEvaluation for Save the Children UK, Save the Children UKRoy, N (2001) Save the Children UK Bosnia Report, Save theChildren UKSave the Children UK (2003/4) excerpts from donor reportsSave the Children UK, communications from Save the ChildrenUK programme staff in Bosnia and Herzegovina.101

Part IIIRecommendations

RecommendationsPreventionWe believe it is vital to prevent children coming intoconflict with the law in the first place by properlyaddressing the care and protection challengesthey face.We recommend that:1. Prevention strategies supporting children withintheir families, communities and societies should beprioritised and developed, with the participation ofchildren themselves.2. Early intervention with a holistic, multi-sectoraland community-based approach, involving at thevery minimum the education, health andprotection sectors, must be undertaken to preventchildren coming into conflict with the law.DecriminalisationWe believe it is vital to decriminalise status offencesand survival behaviour (such as truancy, runningaway from home, begging, loitering, vagrancy),victims of sexual abuse and exploitation, andanti-social behaviour.We recommend that:1. Survival behaviour such as begging and vagrancyand status offences such as truancy, running awayfrom home and breaching curfews, for example,should be decriminalised. Children should simplynot be criminalised for trying to survive, insteadthey should be supported.2. The criminal system should never be used todeal with children who have care issues or aredeprived of good parental care for whatever reason.In particular, detention facilities such as remandhomes should never be used in such cases.3. Children who have not committed a criminaloffence but whose behaviour is deemed sociallyunacceptable should never be dealt with throughthe justice system.4. Children who are victims of violence shouldnever be criminalised (or deprived of their liberty),including children who are trafficked, childrenin commercial sexual exploitation, children whohave been sexually abused, children fleeing forcedmarriages or who have married without the consentof their parents and eloped.105

● THE RIGHT NOT TO LOSE HOPEDiversionWe believe it is vital that diversion options are seenas the priority and are the first response to childrencoming into conflict with the law. They should bethe rule instead of the exception. We believe theformal justice system should be reserved for seriousand violent offenders only.We recommend that:1. Children who have committed petty offences,usually first offences and whose behaviour has beencriminalised – who represent the overwhelmingmajority of children in conflict with the law –should be diverted away from the criminal justicesystem through community-based alternativediversion mechanisms.2. The formal criminal justice system should onlydeal with the small minority of children who havecommitted very serious crimes, usually involvingviolence, and who represent a threat to themselvesand/or their society.3. Diversion must take place at every givenopportunity, including informal diversionmechanisms at the community level and in thejustice system. Key actors, including communityleaders, members of local authorities as well asofficers of the justice system (in particular thepolice, prosecutors, social workers and judges)should be trained to understand the importanceof diversion, their role in it and the alternativemechanisms available.4. Resources and priorities must be refocused awayfrom an expensive, ineffective and often dangerouscriminal justice system to developing a range ofsustainable and localised community-based optionsfocused on reintegration, guidance and support.Justice systemWe believe it is vital to establish comprehensive,child-centred, restorative juvenile justice systemsthat implement international standards and providereal alternatives to detention. We also believeit is vital to hold perpetrators of violence againstchildren accountable through effective andtransparent complaints, monitoring, investigationand redress mechanisms.We recommend that:1. A specialised child-centred justice system mustbe established with an overarching aim of socialreintegration. This system should always guaranteethe rights of children as required by Articles 37 and40 of the UN Convention on the Rights of theChild and abide strictly by international standardsin the administration of juvenile justice.2. Detention should always be a measure of lastresort and should be for the shortest appropriateperiod of time. Specific measures, including properscreening mechanisms, should be in place to ensurethat. Detention represents the most dangerousand isolating period for a child coming intoconflict with the law and it is often the placewhere he or she is exposed to the highest risk ofviolence. Regulating conditions of detention is afundamental requirement for preventing violence,including ensuring the segregation of childrenaway from adults, the separation of boys fromgirls and the convicted from those awaiting trial.106

RECOMMENDATIONS●3. There should be a strong and independent systemof oversight, monitoring and public scrutiny forthe justice system and a policy of ‘no tolerance’ forthose who violate the rights of children within it.The investigation and prosecution of perpetratorsof violence and those who abuse the system,including officials responsible for condoningarbitrary and unlawful detention, should be apriority for governments.4. All forms of torture and other cruel, inhuman ordegrading treatment or punishment should beimmediately abolished and perpetrators brought tojustice. There should be an immediate repeal of alllegislation, policies and practices allowing the useof capital punishment, life imprisonment withoutthe possibility of release, excessive imprisonment,and physical/corporal punishment as a sentenceor disciplinary measure within the justice andpenal system.5. There should be a co-ordinated response by allthe key agencies in the justice system includingpolice, social services, legal services, theprosecution, the judiciary, the probation servicesand the community-based organisations andservices to ensure a continuum of care andprotection for the child in conflict with the law.Reintegration and rehabilitationWe believe it is vital that reintegration andrehabilitation in the community and societyshould be clearly stated as the overall aims ofall interventions with children in conflict withthe law.We recommend that:1. The most marginalised children are supported andencouraged to be part of, and play a positive andconstructive role in, our societies and communitiesthat will ensure that these children have a stake inabiding by our social rules.2. Children are key in finding effective solutions tothe problems and challenges they face. Children,including those who have already come intoconflict with the law, must be involved inpreventative strategies to minimise them cominginto conflict with the law in the first place, as wellas in the reform of the justice system and thedevelopment of community-based alternatives.3. Children need the opportunity to be recognisednot just as victims or as perpetrators, but as socialactors and members of families, communities andsocieties. The aim and focus of interventions withchildren deemed ‘at risk’ should be to empower andsupport them to respond to these challenges and tomake better choices for themselves and theircommunities.107

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Jonatan’s story, HondurasJonatan Josue Arita Isaula was born into a poor familyin the city of San Pedro Sula, Honduras, in 1983. Froma young age he knew what family tragedy meant. Atthe age of seven he lost his mother, and his father lefthome to live with another woman, leaving Jonatan andhis five brothers and sisters totally alone.The childrensurvived thanks to the charity and kindness of localpeople. Jonatan begged for food at neighbouringhouses, as the children had no one to help themmeet their basic needs.The only source of happiness in Jonatan's life was hisfriends in the neighbourhood, particularly the leadersof the local gang called the Vatos Locos, a localgrouping of one of the city’s biggest gangs.The ganghelped him find food and the affection he could neverhave at home. He decided to join at the age of 14and received his ‘baptism’ and tattoo at the ageof 15. From then on, he left his old home to livepermanently with the gang, which lived in emptyhouses in the city. In the gang he learned to rob andhe was very disciplined even for the most dangerousmissions. He carried out all kinds of illegal activities:not to do so was severely punished by the gang, evenwith death. In time, Jonatan gained the respect of hiscompanions through his natural goodness, his braveryand his solidarity with his friends. He came to hold aposition of leadership and was eventually one of theprincipal leaders of the gang.He was arrested on various occasions and beinga minor was sent to the El Carmen RehabilitationCentre, from which he escaped before turning 18,turning himself into a prisoner on the run. In thosedays Jonatan did not mind what kind of a life he livedbecause he always believed his destiny was death.But at the age of 17, he met a young woman calledMarina who would change his life. With her heestablished a family home and had three children.These events changed his way of thinking because hewanted his children never to suffer the way he had.He had promised that he would retire from the gangwhen he had his first child. When he was 20 hefulfilled this promise. Without telling anyone, he leftthe city to escape the gang.The custom in gangs isfor desertion to be punished with death. A year and ahalf later he returned to be with his children and for atime his old companions wanted to kill him for beinga traitor, but Jonatan asked them for understanding.Because of the leadership role he had held, they finallyaccepted that he wanted to work for his family, aslong as he did not enter any other gang. Around thattime he was contacted by the non-governmentalorganisation ‘Young Hondurans Together Advance’(JHA–JA).After anti-gang legislation was introduced in Hondurasin 2003, through the application of Article 332 of theCriminal Code, the police picked up any young manwith a tattoo and they were put in jail for as long as12 years. Jonatan fled the city before he could bearrested because of his tattoos. When he returnedhe found the gang in a different state.They had beenconvinced by JHA–JA to abandon their violent wayof life and to seek positive reintegration into society.From then on, Jonatan joined them enthusiasticallyin their new life. He did not want his children toexperience anything like his life with the gang, andsought to have his tattoos removed.Jonatan inspired the group because of the profundityof the change he underwent and the discipline withwhich he focused himself on his training in themetallurgy workshop. He was very enthusiastic aboutsetting up his own workshop one day. But his dreamwas not to be realised. On 2 April 2005, on his dailyroute home from work, he was assassinated in theFelipe Zelaya neighbourhood by a gang of youthswho killed to order for one of the groups of organisedcrime operating locally. He was 22. Despite the factthat his friends gave the police clear descriptions ofhis assailants, no one was ever arrested and the policehave now abandoned the case.Jonatan’s friends still mourn his death but his examplecontinues to inspire and motivate them. In this, Jonatancontinues to be a leader.112