Author : Ananye Krishna
In my last post on diverting children in conflict with the law (CCL) from the criminal justice system, it was highlighted that diversion has been internationally accepted as the apt procedure to deal with CCL. It was also highlighted that the Indian legislation, Juvenile Justice Act 2015, pays mere lip service to this societal need.
Having laid the foundation for diversion, this post will illustrate a practical model for pursuing diversion. As was noted in the last post, UNICEF provides an elaborate list of reasons for adopting diversion. The list broadly conveys that diversion will help check deviance amongst children. It will help the child improve his/her life skills and help them build their self-esteem, and it will promote social development and the ideals of restorative justice.
An effective method
Now, to conduct diversion we need a model by which we engage with the problem and try to solve it – the solution being a success if it achieves the aforementioned goals. UNICEF has accepted Mediation as an effective method of diverting a CCL and achieving the aforementioned broad goals. Further it has been shown by an empirical study that mediation can help in reducing juvenile recidivism by 34%.[1]
The mediation model we are going to have a look at is the ‘Community Based Diversion and Prevention Program for Children in Conflict with Law’, which is currently being implemented in Philippines.[2] This program has led to positive outcomes in the form of reduced recidivism and child delinquency in general, and has also led to a growing awareness of child rights within the community.[3] The proven efficacy of the model and the fact that it has been structured in a way to include certain best practices for youth diversion, as highlighted later on, made it an apt choice for being discussed at this point. Although it has to be noted that this model isn’t without its flaws, as have been highlighted below, and also there isn’t any direct evidence to suggest that this will work in India as it is. So it is just that, a model, it can be used as a guide but not as a tool.
Nuances of the model
The diversion strategy being employed directs that post apprehension the child has to be immediately transferred to the custody of the Child Justice Committee (hereinafter CJC) if the child has been placed in a temporary shelter by the police, and if the complaint of offense is received then the child is invited (summoned) to CJC. This acts as a hybrid between a pre-arrest diversion and a post-arrest diversion, as in this case the child is being summoned/transferred and there is no form of detention involved, thus minimal contact with the criminal justice system – a salient aspect of pre-arrest diversion.[4]
The CJC is headed by two co-chair persons from Lupong Tagapamayapa which is a equivalent of a district level body, its role being the resolution of disputes without formal charges – a local alternate dispute resolution body. In addition to this the body is composed of district level representatives; social workers; youth council representatives; police; and NGOs. Thus, it is, at least on paper, a wholesome body well equipped to engage appropriately with CCL. This engagement of a wide range of people from the community and giving space for cross agency partnership – the inclusion of police along with local government officials – are two best practices which are being adopted by this model.[5]
When CJC gets custody of the child a profiling interview is undertaken. It is meant to take stock of the child’s socioeconomic and personal situation and to inform the child about an alternative in the form of mediation as opposed to a trial. Simultaneously the affected party is also informed about the option of mediation.[6] The choice of a mediator has been restricted to the co-chairs of the CJC, although it seems that a more appropriate strategy would have been to select external mediators based on the consensus of the CJC as it has been emphasized by the United Nations that people who are to mediate should be well versed with child rights and UN Convention on Child Rights[7].
It is important to note here that in general an emphasis is placed on the fact that the diversion program will be successful only if the mediator has knowledge and exposure to diversion programs and has a deep understanding of the psychodynamics of the child offender.[8] This is something that hasn’t been appropriately stressed upon even by the act in India. The act does not emphasize the requirement of domain-specific expertise of the Magistrate who heads the JJB, although the model rules do say that the other two members are supposed to have at least seven years of experience in working with children.[9] The overall impact may be diluted because for the final decision of the board only two members are sufficient and in case of a difference of opinion the view of the magistrate will prevail as given under section 7 of the act.
Getting back to the diversion process. If both the parties – the complainant and the CICL – are okay to go ahead with mediation then the same will be conducted by CJC, in any other case the case moves to the formal justice system. The requirement of consensus might hurt the interests of CCL because a vengeful complainant may not agree even in cases where the crime is not severe. The mediation process itself will be conducted by the CJC in the presence of parents/guardians and community volunteers[10], creating a much more amenable environment for the CCL as compared to a courtroom setting.
Arriving at a solution
The mediators try their best to arrive at a settlement that benefits both the parties and following the settlement the process of rehabilitation and reintegration of the child begins. Nowhere along the process is the CCL burdened by any legal requirement like seeking bail and the confinement in the observation home is only till the point that the child is diverted to the CJC for an interview and subsequent mediation.[11]
This diversion program in the Philippines provides us with a good framework; working along these lines will help India not only in the effective management of child delinquency it will also promote child welfare to a much greater extent. Although, it has to be kept in mind that simply adopting a new framework should not be the end of the road if things have to actually improve then it is extremely crucial that proper emphasis is placed on the appropriate training of the concerned officials and a check to ensure the diligent performance of duties.
.
[1] W. Bradshaw, D. Rosenborough, & S.M. Umbreit, “The effect of victim offender mediation on Juvenile Recidivisim: A Meta Analysis”, Conflict Resolution Quarterly, 24(1), pp. 87-98
[2] Guidelines for a Community Based Diversion and Prevention Program for Children In Conflict with Law
https://resourcecentre.savethechildren.net/sites/default/files/documents/2971.pdf
[3] Guidelines for a Community Based Diversion and Prevention Program for Children In Conflict with Law
https://resourcecentre.savethechildren.net/sites/default/files/documents/2971.pdf, p.2
[4] Jill Farell, Aaron Bestinger, and Paige Hammond, “Best Practices in Youth Diversion”, Institute of Innovation & Implementation University of Maryland School of Social Work, p. 5
[5] Jill Farell, Aaron Bestinger, and Paige Hammond, “Best Practices in Youth Diversion”, Institute of Innovation & Implementation University of Maryland School of Social Work, pp. 12-13
[6]Guidelines for a Community Based Diversion and Prevention Program for Children In Conflict with Law
https://resourcecentre.savethechildren.net/sites/default/files/documents/2971.pdf, pp. 14-17
[7] Protecting the Rights of Children in Conflict with Law
https://www.unodc.org/pdf/criminal_justice/Protecting_children_en.pdf, p56
[8]Guidelines for a Community Based Diversion and Prevention Program for Children In Conflict with Law
https://resourcecentre.savethechildren.net/sites/default/files/documents/2971.pdf, p.19
[9] R. 4, Juvenile Justice Act Model Rules, 2016
https://wcd.nic.in/sites/default/files/171861.pdf
[10] Guidelines for a Community Based Diversion and Prevention Program for Children In Conflict with Law
https://resourcecentre.savethechildren.net/sites/default/files/documents/2971.pdf, pp. 17-19
[11]Guidelines for a Community Based Diversion and Prevention Program for Children In Conflict with Law
https://resourcecentre.savethechildren.net/sites/default/files/documents/2971.pdf, p.12
