Help when a child has been arrested
What is the Child Justice Act (CJA)?
Since 1 April 2010, children who committed crime are dealt with in terms of the Child Justice Act (CJA), instead of the normal criminal procedure which is used for adults. The aim of the CJA is to set up a child justice system specifically for children in conflict with the law. On 19 August 2022, the Child Justice Act was amended to increase the minimum age of criminal capacity from 10 years to 12 years.
Who classifies as a child?
According to the Child Justice Act (CJA), a child is someone who is under the age of 18 years.
What age categories of children can be arrested?
The CJA is specifically intended for children between the ages 12 and 18 years.
According to the CJA, a child under the age of 12 years cannot be arrested. This means that a child under 12 years does not have criminal capacity and can therefore not be charged or arrested for an offence. In such a case, the police official must refer the child to a Probation Officer at the Department of Social Development for social work interventions and/or referral to the Children’s Court.
The CJA states further that it can be presumed that a child older than 12 years but below the ages of 14 years lacks criminal capacity, unless the State Prosecutor proves that he/she has criminal capacity. Such a child can be arrested.
According to the CJA a child above 14, but under 18 years of age have criminal capacity and can be arrested.
What are the rights of children who are arrested?
Children who are arrested are not supposed to be treated in the same way as adults, and have certain rights guaranteed to them in terms of the Child Justice Act. These include:
- The right to have their parents/guardians present - A child's parents or legal guardians must be notified by the police of the arrest as soon as possible.
- The right to a speedy assessment - A child must be assessed by a probation officer, who is a trained social worker, within 48 hours of arrest.
- Children under the age of 14 years cannot be detained in prison.
- Children 14 years and older should be detained in prisons as a last resort.
What can a parent/guardian do to help a child who has been arrested?
Your involvement in the child's case at this stage can have a considerable impact on the long-term consequences for the child. You can do the following to help speed up the judicial process and, hopefully, keep the child out of prison:
- Ensure that a probation officer assess the child as soon as possible after the child’s arrest. Probation officers are social workers, employed by the Department of Social Development stationed at magistrates' courts and police stations, and often have to travel around between them. If there is no probation officer around, ask the police to check when and where probation services will be available again (all stations have been given a list of probation officers to call for this information).
- Ensure that documentary evidence is provided to the police and probation officer to confirm the identity and date of birth of the child.
- Be present when the probation officer assesses the child.
- During the assessment, the probation officer looks at all the circumstances in the child's life, including general living conditions and the details of the crime the child is supposed to have committed.
- Attend the preliminary inquiry (first court appearance) because your presence could have a significant impact on the probation officer's recommendation to the prosecutor on whether the child should be released to the parents' care or taken to a secure care facility before the trial.
- Your presence and input are also invaluable with regard to the diversion of the case out of the criminal justice court. The probation officer makes a recommendation to the magistrate at a preliminary inquiry, where the decision will be made to divert or proceed to the child justice court.
- Attend court the proceedings when the child is referred to the child justice court.
What can I do if my child is being treated inappropriately during or after arrest, awaiting trial or after sentence?
If you are worried that your child is being is being treated inappropriately during or after arrest, awaiting trial or after sentence, please contact:
Contact:
Ms M Palmer
Crime Prevention & Support Programme
Directorate: Restorative Services
Department of Social Development
14 Queen Victoria Street, Cape Town, 8000
Tel: 021 483 4405
Email: Michele.Palmer@westerncape.gov.za
Where can I find out more about the Child Justice Act?
Click here to download:
1. The full Child Justice Act in pdf format.
2. The Child Justice Amendment Act 28 of 2019
3. The Child Justice Act Fact Sheet (Department of Justice)
4. The Child Justice Act Brochure (Department of Justice