A Fragmented Response of the Juvenile Justice System Presentation at Are you Anti – Child Labour or Anti –Child Organized by Concerned for Working Children

(C) Arlene Manoharan, CCL NLSIU, 2015

A Fragmented Response of the Juvenile Justice System

Presentation at

Are you Anti – Child Labour or Anti –Child

Organized by

Concerned for Working Children14th July 2015

Arlene Manoharan, MSWFellow, Program Head – Juvenile Justice Centre for Child and the Law, NLSIUEmail: [email protected]; [email protected]

mailto:[email protected]

mailto:[email protected]


The Juvenile Justice ‘System’


Does a working child come under the purview of the JJ Act?

A child in need of care and protection includes…• Sec 2 (1) (d) (i) (a), JJ Act: ‘who is found begging,

or who is a street child or a working child’

• Rule 2 (p), JJ Model Rules 2007: “street and working children” means children without ostensible means of livelihood, care, protection and support in accordance with the provisions laid down under clause (d) (1) of section 2 of the Act”


What are the Aims of Juvenile Justice?• To develop conditions to ensure that the child leads a

meaningful life in the community.• To foster an attitude of positive personal development, free

from crime and delinquency.• To mobilize available community resources to rehabilitate the

child with a view to reduce the need for intervention under the law.

• To provide proper care, protection & treatment, developmental needs, child friendly approach in the adjudication and disposition of matters in the best interest of children

• To socially integrate child victims to the extent possible without resorting to judicial proceedings

• To put in place child friendly processes and institutions


Aims of the JJ Act (cont.)• To restore/reintegrate children and ensure that

institutionalization and detention is a measure of last resort.

• To develop greater co-ordination and collaboration between all actors and stakeholders

• To provide for the basic needs and protect the human rights of children

• To pave the way for greater involvement of civil society in partnering with the state in this endeavour


Fundamental Principles that should guide decisions on Working Children

Rule 3 (2) II of the JJ Model Rules 2007: Principle of dignity and worth • (a) A …child shall be treated in a way that is consistent with the

child’s sense of dignity and worth; this is a fundamental principle of juvenile justice. This principle reflects the fundamental human right enshrined in Article 1 of the UDHR that all human beings are born free and equal in dignity and rights. Respect of dignity includes respect for not being humiliated; personal identity, boundaries and space being respected; not being labeled and stigmatized; being offered information and choices; and not being blamed for their acts.

• (b) The … child’s right to dignity and worth has to be respected and protected throughout the entire process of dealing with the child from the first contact with JJ system and throughout the implementation of all measures for dealing with the … child.



Rule 3 (2) III of the JJ Model Rules 2007- Principle of Right to be heard:• Every child’s right to express his views freely in all

matters affecting his interest shall be fully respected through every stage in the process of juvenile justice. Children’s right to be heard shall include creation of developmentally appropriate tools and processes of interacting with the child, promoting children’s active involvement in decisions regarding their own lives and providing opportunities for discussion and debate.



Rule 3 (2) IV of the JJ Model Rules 2007 - Principle of Best Interest:(a) In all decisions taken within the context of administration of juvenile justice, the principle of best interest of the juvenile or the juvenile in conflict with law or child shall be the primary consideration. (b) The principle of best interest of the juvenile or juvenile in conflict with law or child shall mean for instance that the traditional objectives of criminal justice, retribution and repression, must give way to rehabilitative and restorative objectives of juvenile justice. (c) This principle seeks to ensure physical, emotional, intellectual, social and moral development of a juvenile in conflict with law or child so as to ensure the safety, well-being and permanence for each child and thus enable each child to survive and reach his or her full potential.


Who advocates for the Best Interest of Child Labourers before the CWC?

• Brainstorming


Representation of ChildrenIn democracies adults have the following means to

represent themselves: • Voting for their elected representatives• Participating in local government through platforms

like Grama Sabhas • Legal Action• Protests, rallies, petitions and other forms of political

action• Through membership in unions and movements• In courts of lawChildren are, for the most part, denied these avenues &

lack formal spaces to represent themselves & their interests.


Value of child’s right to participation and representation in judicial proceedings

• Enhances access to justice and statutory services for children in need of care and protection

• Places responsibility and duties on decision makers to apply legally binding articles of the UNCRC –i.e. Articles 3 (Best Interest), and 12 (right to be heard)

• Places additional responsibility to ensure adherence to the Principle of Natural Justice (See Karnataka JJ Rule 2 XVIII, Schedule 1)

• Places duty to ensure that the wishes and rights of the child are claimed, respected and protected.

• Enables empowerment of children and families as partners in the inquiry by CWCs, which result in legally binding orders that can only be challenged on appeal to a higher court.


UNCRC position on child’s right to participation and representation in judicial proceedings

Article 12 UNCRC, one of the core principles of the Convention states as follows:

• ‘States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.’

• ‘For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.’


Position of the UN Committee on the Rights of the Child on Right to be Heard

The Committee’s General Comment No. 5 (para 24):• ‘States need to give particular attention to ensuring that

there are effective, child-sensitive procedures available to children and their representatives. These should include the provision of child-friendly information, advice, including support for self advocacy, and access to independent complaints procedures and to the courts with necessary legal and other assistance.

• Where rights are found to have been breached, there should be appropriate reparation, including compensation and where needed measures to promote physical and psychological recovery, rehabilitation and reintegration (as required by Art 39 of the CRC).



Rule 3 (2) X. Principle of equality & non-discrimination:(a) There shall be no discrimination against a child or juvenile in conflict with law on the basis of age, sex, place of birth, disability, health, status, race, ethnicity, religion, caste, cultural practices, work, activity or behaviour of the juvenile or child or that of his parents or guardians, or the civil and political status of the juvenile or child.(b) Equality of access, equality of opportunity, equality in treatment under the Act shall be guaranteed to every child or juvenile in conflict with law.



Rule (3) 2 V. Principle of family responsibility:• (a) The primary responsibility of bringing up children, providing

care, support and protection shall be with the biological parents. However, in exceptional situations, this responsibility may be bestowed on willing adoptive or foster parents.

• (b) All decision making for the child should involve the family of origin unless it is not in the best interest of the child to do so.

• (c) The family - biological, adoptive or foster (in that order), must be held responsible and provide necessary care, support and protection to the juvenile or child under their care and custody under the Act, unless the best interest measures or mandates dictate otherwise.



Rule 3 (2) VI. Principle of Safety (no harm, no abuse, no neglect, no exploitation and no maltreatment):(a) At all stages, from the initial contact till such time he remains in contact with the care and protection system and thereafter, the juvenile or child or juvenile in conflict with law shall not be subjected to any harm, abuse, neglect, maltreatment, corporal punishment or solitary or otherwise any confinement in jails and extreme care shall be taken to avoid any harm to the sensitivity of the juvenile or the child.(b) The state has a greater responsibility for ensuring safety of every child in its care and protection, without resorting to restrictive measures and processes in the name of care and protection.



Rule 3 (2) VII. Positive measures:(a) Provisions must be made to enable positive measures that involve the full mobilization of all possible resources, including the family, volunteers and other community groups, as well as schools and other mainstream community institutions or processes, for the purpose of promoting the well-being of the juvenile or child through individual care plans carefully worked out.(b) The positive measures shall aim at reducing vulnerabilities and reducing the need for intervention under the law, as well as effective, fair and humane dealing of the juvenile or child. (c) The positive measures shall include avenues for health, education, relationships, livelihoods, leisure, creativity and play.(d) Such positive measures must facilitate the development of identity for the child and provide them with an inclusive and enabling environment.



Rule 3 (2) XI. Principle of right to privacy and confidentiality: The ….child's rights to privacy and confidentiality shall be protected by all means and through all the stages of the proceedings, care and protection processes.



Rule 3 (2) XII. Principle of institutionalization as a measure of last resort:Institutionalization of … child shall be a step of the last resort after reasonable enquiry and that too for the minimum possible duration.



Rule 3 (2) XIII - Principle of repatriation:a) Every … child has the right to be re-united with his

family and restored back to the same socio-economic and cultural status that such … child enjoyed before coming within the purview of the Act or becoming vulnerable to any form of neglect, abuse or exploitation.

b) Any … child, who has lost contact with his family, shall be eligible for protection under the Act and he shall be repatriated and restored, at the earliest, to his family unless such repatriation and restoration is likely to be against the best interest of the ….child.


Matters to be inquired into

• Brainstorming(a) Preliminary inquiry at time of first contact(b) Inquiry by CWC


Towards a being Pro - Child

From Towards

Generalization that all Child Labourers are Children in Need of Care and Protection and require to be institutionalized, as parents are negligent, exploitative and abusive

Focus on the individual child and family, using the Social Investigation Report and Individual Care Plan as tools to inform and operationalize Best Interest Decisions

Raid and Rescue mentality Identifying Root causes, and enabling Rehabilitation through balancing Child Participation with Best Interests

Heirarchization of rights Identifying the Best Interest of the Child, while respecting and protecting all the rights of the child, particularly through the right to be heard

Statutory Institutions under the JJ Act are places that provide care and protection

CHs are places of detention of liberty, as a child is not able to leave at will. Identifying placement options based on detention as a measure of last resort, and ensuring the use of Non-institutional services as entitlements

‘Without resorting to judicial proceedings’ and diversion only applicable to JCLs

Applies to all children coming under the purview of the Act, given principle of detention as a measure of last resort

Schools provide quality education Engaging critically with the Right to Education debates – recognizing that Education is a fundamental means towards a dignified life, and that Edn provided by the state within the JJ system does not enable retention, contribute to employable skills or effectively enhances QOL


Recommendations1. Change in mindsets towards becoming Pro-Child2. Standard Operating Procedures for dealing with Child Labour under the

JJ Act and State Rules (Equations and APSA report)a) Social Investigation Reports customized for working childrenb) Rescue protocols based on normative framework that evolves through

the above process, including Preliminary Risk Assessments to inform decision on whether to produce the child before the CWC or not, including possibly reports of all children not produced before CWC to be sent to the CWC within 48 hours

c) Principle of Positive Measures to be applied by CWC in all casesd) Non-institutional measures such as Sponsorship to be prioritizede) Panel of Fit persons/Fit organizations working in the field of child labour

and right to education f) Education: Follow up to ensure child is admitted into effectively

functioning schools with adequate financial, educational and other support

3. Code of Conduct for stakeholders dealing with working children


Recommendations4. Appropriate amendments to the Child Labour Act5. Inter-Sectoral Linkages - State and District CPUs to network with concerned Departments and organizations as required under JJ Rules6. Support and counseling for children on arrival into Children’s Home/Shelter Home7. Activating and animating the JJ - Children’s Committees, 8. Activating and animating the JJ -Management Committees9. Inspection Committees10. Escorts11. Quality of schools to be enhanced to enable families and children to value education as a means that leads them to a dignified quality of life, and also education support systems within the JJ system.


Recommendations12. Cadre of voluntary Probation Officers under Rule 85 of the JJ Model Rules. 13. Right to be represented for Children alleged to be in need of Care and Protection14. Engaging with State High Court Committees on Juvenile Justice to inform effective implementation of the JJ Act15. Right to Life – Access to socio-economic schemes to raise the socio-economic status of the poor.


Need for more effective enabling environments, legal provisions and facilitators

• Absence of mechanisms for redressing grievances by children who are adversely affected by such laws causes intense trauma and perpetuates abuse, especially the criminal abuse of power.

• Creating safe spaces for children to express their views is extremely important. This has to be achieved as a combination of creating the right attitude in the community, creating confidence in children and creating appropriate mechanisms – such that it can protect the identity of children who wish to express views that could invite retribution from adults or other children.


Concluding Reflections

• How do we change the balance of power in favour of children, especially those who are marginalized, excluded, in trauma and in fear?

• By ensuring justice to children and families, we are building the foundation of a society that respects the constitutional values of justice, equality and freedom for all, for generations to come.


Changing the power equation

• ‘Democracies are not only sought in the public sphere, they are created within the emotional intimacies of private social worlds. These worlds present the child with new challenges for the recognition and realization of their rightful autonomy and agency’.

• Need to address ‘Power’ which underlies all the Core Principles and characterizes the relationship between children and adults’.(Mary John, Children’s Rights and Power – Charging up for a new Century.)

Documents

A Fragmented Response of the Juvenile Justice System Presentation at Are you Anti – Child Labour or Anti –Child Organized by Concerned for Working Children