Abstract
This article aims to stimulate critical discourse on the current practices regarding best interest of children in conflict with the law. The issue explored is whether determining the criminal capacity of children in conflict with the law is in the best interest of these children.Findings indicated that logistical and operational challenges are denying child offenders services as intended in the Act. In the light of this finding, the article advocates for keeping a clear vision of the Act’s restorative and rehabilitative intention as opposed to following a pragmatic approach during the upcoming review of the age of criminal capacity.
Highlights
The Child Justice Act is regarded as an extension of the Constitution of the Republic of South Africa, Act 108 of 1996, and is seen as a regional and international human rights instrument.[6]
The special needs of child offenders are recognised in the Child Justice Act; it represents a rights-based approach to dealing with children under the age of 18 who come into conflict with the law.[8]
It is anticipated that this change to the Child Justice Act will result in an increase in the number of orders for criminal capacity evaluations, which could, as discussed below, contribute to an overburdening of mental health professionals who already struggle to cope with the number of referrals they receive
Summary
The South African minimum age of criminal capacity, 10 years, is lower than the recommended minimum age of 12 years proposed in the United Nations Convention on the Rights of the Child (UNCRC) General Comment No 10.14 In addition, the Committee on the Rights of the Child (the UN committee responsible for monitoring the implementation of the UNCRC) raised concerns about the practice of using a rebuttable assumption in the determination of criminal capacity Their primary concern is that in these systems the decision about a child’s criminal capacity lies with the court, and may result in discriminatory practices if court officials who don’t have the necessary qualifications or experience are the ones making such decisions.[15] Even though procedural mechanisms to redress this concern are included in the Child Justice Act, in practice logistical and operational challenges discussed later in the article are seen to potentially deny child offenders the benefit of these services as intended by the act
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