The notion that children deserve special attention in the legal and judicial system is not a new issue in the modern world. It is the duty of the State to ensure that children's rights are secured. Accordingly, different States have taken various initiatives to establish a child-friendly justice system to protect their best interest in all stages of justice process.
Child-friendly juvenile justice rests on the Convention on the Rights of the Child (CRC) 1989 principles of non-discrimination, best interests and participation of the child together with articles 37 and 40. In General Comment No 10 on children's rights in juvenile justice, the CRC Committee in like manner, emphasised that rehabilitation and restorative justice are the objectives in a child rights oriented juvenile justice system. Furthermore, regional human rights systems have also established conventions and guidelines that are relevant to child-friendly justice system. Of particular note are instruments from the European and African systems. The Committee of ministers of the Council of Europe has developed Guidelines on Child-friendly Justice Systems. The Council of Europe approved (17 November 2010) Guidelines on Child-Friendly Justice to direct European governments in their efforts to enhance children's access to justice.
In discussing child-friendly justice relating to child offenders, a number of points should be considered. The fundamental issues as recognised by the Council of Europe (Committee of Ministers, 2000) are: keeping children in conflict with law out of the justice system, introduction of a special juvenile justice system and establishment of a comprehensive child centred restorative juvenile justice system. The juvenile justice system should ensure that any reaction to juvenile offenders should be proportionate to the gravity of the offence and personal circumstances of the offender as per rule 5.1 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 (Beijing Rules). The age of criminal responsibility for juveniles should not be fixed at too low a level, bearing in mind the facts of emotional, mental and intellectual maturity. There should be a close relationship between the notion of criminal responsibility and other social rights and responsibilities as per Rule 4 of the Beijing Rules.
Despite having almost 25 years in which to put the CRC into effect, Bangladesh appears to have failed to recognise the centrality of such issues as distinctive needs, dignity, humane treatment and so on as core to the realisation of children's rights. Thereafter, to establish a child-friendly justice system, the Children Act, 2013 recognises some organisations and their responsibilities for the protection of the best interest of the children. It has also introduced new provision such as Child Affairs Police Officer (CAPO), National Child Welfare Boards (NCWB), Child Development Centers (CDCs), certified institutes etc. In addition, the Act provides that the government shall appoint at least one or more probation officers in every district, sub-districts or metropolitan area. In any case where child offenders are sent to a CDC or any certified institute, it is the duty of the probation officer to prepare and preserve a separate file for each child, and to follow the procedure for alternative care.
In the Act, the age of the child has been increased from 16 to 18 years within which a delinquent will be treated as child. The Act specifically provides that no child below the age of nine years can be arrested under any circumstances. Considering the best interests of the child, the Children Court may pass order to ensure the safety and confidentiality of the child and to maintain secrecy of all information regarding the child so that the child's identity may not be disclosed. It is interesting to note that the court may not use the terms “offender,” “convicted,” or “sentenced,” in relation to children while passing an order, instead, the terms “a person found guilty of an offence,” “a finding of guilt,” or “an order made upon such findings,” or such other terms as the court deems appropriate may be used.
In practice, insufficient emphasis has been placed on diversions, both in legislation and in practice, on introducing alternatives to the formal justice system, or on changing the fundamentally custodial nature of the entire juvenile justice system in the country. As a result most offender children end up deprived of their liberty either in police lock-ups, prisons, children's rehabilitation centres or homes without the touch of family. Similarly, there is no adequate child-friendly police unit and national child welfare boards for dealing with the offender children. Furthermore, due to the insufficiency in the number of separate children courts from ordinary courts in every division, most of the time children are tried under the ordinary courts. Often children are sent to prison instead of their correctional institutions. There is a conspicuous lack of alternative measures instead of punishment also. Moreover, in each CDC, there are two or three probation officers and social case workers for counseling and motivating for behavioral correction, psycho-social and human development, socialisation and re-integration of the inmates which is not sufficient.
It is needed to establish effective child friendly justice system in Bangladesh on the basis of international standards. At present the most important matters for the government are: setting up the Child Affairs Desks and the appointment of Child Affairs Police Officers in the police stations, establishing sufficient numbers of safe homes and certified institutes, Gazette notification setting up the Child Development Centres and Children's Courts and framing of Children Rules. Rules are most urgently needed, as without them many of the new concepts, such as diversion, family conferencing, alternative care, dispute resolution etc. cannot be put into practice.
The writer is an Associate Professor of Law, Bangladesh Open University.