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DIVERSION AND ALTERNATIVES
 TOOLKIT		  
 
 
 
 
 
 
 
Frequently asked questions
 

 

  1. What is the difference between 'diversion' and 'alternatives'?
  2. Diversion and alternatives are 'restorative justice', aren't they?
  3. What's the link between 'alternatives' and 'de-institutionalisation'?
  4. Traditional and non-formal justice systems already operate a system of diversion and alternatives, don't they?
  5. Why should we pay special attention to diversion and alternatives compared to other aspects of reform for children in conflict with the law?
  6. How can I convince stakeholders that diversion and alternatives are important?
  7. Legislative reform is very difficult in my country: is this necessary for diversion and alternatives?
  8. Is it expensive to implement diversion and alternatives? Where will the money come from?
  9. How can diversion and alternatives be made to work for children who lack family and community support structures, such as children in street situations?
  10. Where can I find examples of 'what works' in other countries?
  11. What's the best way to monitor and evaluate diversion and alternatives?

 

1. What is the difference between 'diversion' and 'alternatives'?

  • 'Diversion' is a process to guide children in conflict with the law away from judicial proceedings at the earliest possible stage. 'Alternatives' to detention are measures which avoid children in conflict with the law being deprived of their liberty both pre-trial and post-sentence.
  • Diversion requires the informed consent of the child (and often the parent / guardian) whereas alternatives can be imposed without this consent.
  • Diversion does not result in a criminal record whereas an alternative sentence usually does.
  • For more information, see the toolkit sections on definitions and discussions of diversion and alternatives.

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2. Diversion and alternatives are 'restorative justice', aren't they?

  • Not necessarily. Diversion and alternatives may adopt a restorative justice approach where this is possible and appropriate, and there is often a strong overlap with restorative justice, but they are not the same thing.
  • For more information, see the toolkit sections on definitions and discussions of diversion, alternatives and restorative justice, and the 'useful diagram' which helps to clarify the differences and overlaps.

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3. What's the link between 'alternatives' and 'de-institutionalisation'?

  • Both 'alternatives' and 'de-institutionalisation' promote measures for children which do not involve placement in large institutions.
  • However, 'alternatives' apply to children in conflict with the law whereas 'de-institutionalisation' refers to children who have been placed in residential facilities for reasons of care and protection, physical or learning disabilities or mental illness, or other social welfare, education and/or health issues.
  • 'Alternatives' avoid the placement of children [in conflict with the law] in any facility from which they are not free to leave (regardless of size), whereas 'de-institutionalisation' is often primarily concerned with avoiding the placement of children [not in conflict with the law] in large facilities, promoting instead family-like care and living arrangements.
  • Reform is needed to promote both alternatives and de-institutionalisation. However, this toolkit is concerned only with children in conflict with the law.
  • For more information, see the toolkit sections on definitions and discussions of alternatives.

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4. Traditional and non-formal justice systems already operate a system of diversion and alternatives, don't they?

  • In some cases, yes. They may be implementing diversion and alternatives with or without cooperation, collaboration and/or official recognition from the state.
  • Where possible and appropriate, diversion and alternatives can capitalise on the structures in place for traditional and non-formal justice systems.
  • However, according to international guidelines, diversion and alternatives must comply with child rights and legal safeguards. It may or may not be the case that traditional and non-formal justice systems comply with these safeguards. If they do not comply with these safeguards then the 'diversion' and 'alternatives' in operation through these systems are not acceptable. They must be brought into line with these safeguards or not used.
  • For more information, see the toolkit sections on:

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5. Why should we pay special attention to diversion and alternatives compared to other aspects of reform for children in conflict with the law?

  • UNICEF is committed to comprehensive reform for children in conflict with the law in order to bring justice systems in line with international standards (as set out in the Committee on the Rights of the Child General Comment No. 10).
  • However, given the over-use and mis-use of detention globally and the rights violations which this entails, when comprehensive reform is not possible (e.g. due to limited resources or political will) measures which promote the least possible use of deprivation of liberty (such as prevention, diversion and alternatives) provide a strategic and pragmatic entry point, rather than focusing mainly or exclusively on isolated initiatives to improve conditions in detention without addressing the broader context.
  • For more information, see the toolkit sections on 'Diversion & alternatives in the broader context of justice for children' and UNICEF's mandate in relation to children in conflict with the law.

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6. How can I convince stakeholders that diversion and alternatives are important?

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7. Legislative reform is very difficult in my country: is this necessary for diversion and alternatives?

  • It depends on what legal provisions are already in place.
  • Reform for children in conflict with the law requires that legislation be brought into line with international standards and that diversion and alternatives be provided in law in order to prevent discriminatory use.
  • However, many countries struggle with legislative reform and therefore many practitioners advocate the promotion of diversion and alternatives in parallel to legislative reform, even in the absence of specific enabling legislation.
  • A significant amount of legislation allows for a degree of 'discretion' in interpretation and application: even if diversion and alternatives are not explicitly provided for, they may nonetheless well be possible within the scope of this discretion.
  • Pilot projects can be a way to accelerate implementation of diversion and alternatives in the absence of enabling legislation. Pilot projects that have been evaluated as successful can be instrumental in triggering legislative reform.
  • For more information, see the toolkit section on 'legislation and enforcement'.

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8. Is it expensive to implement diversion and alternatives? Where will the money come from?

  • The cost of implementing diversion and alternatives will depend very much on the specific country context, e.g. the 'starting point' / what is already in place, existing resources, and the numbers of children in conflict with the law.
  • The toolkit section on 'cost effectiveness' highlights a number of relevant arguments in relation to cost, and outlines the types of costs involved in diversion and alternatives.
  • The toolkit section on 'legislation and enforcement' shares the South African experience of conducting a costing of proposed legislation.
  • The toolkit section on the 'systemic approach' emphasises the need for inter-agency cooperation and collaboration, including in the area of funding and technical support, and this is also covered in the section on 'technical support'.
  • The toolkit section on 'overcoming obstacles' also includes some good advice on the working in a context of limited resources.

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9. How can diversion and alternatives be made to work for children who lack family and community support structures, such as children in street situations?

  • In many countries such children are the most likely to come into contact with the criminal justice system and the least likely to benefit from diversion and alternatives. This emphasises the importance of a systemic approach which situates diversion and alternatives in the broader context of child protection reform: the context of children in street situations is such that often a social welfare / child protection response is often more appropriate than a criminal justice response.
  • Map existing governmental and non-governmental initiatives for such children (e.g. using the toolkit mapping and planning tool) and collaborate amongst stakeholders regarding referrals.
  • Ensure that legislation and practice:
    • de-criminalise status offences and exploitation to avoid such children being unnecessarily arrested in the first place;
    • maximise the use of all possible extended family and community contacts who can act as caregivers for such children, thus enabling them to benefit from diversion and alternatives, even if the immediate family is not an option. See e.g. the sample guidelines for police on the detention and release of children which refers to a broad interpretation of CRC Article 5 on this matter;
    • take into consideration the lack of ability of a child or their parent, guardian or other person to pay a fine, damages or costs so that this shall not be used as a basis for discrimination against imporverished children.
  • Advocate against the illegal and arbitrary detention of children in street situations.
  • Country example - Uganda’s “fit person” scheme: "Under the  country’s Children’s Act, one of the listed alternatives to pre-trial detention is the placement of a child with a 'fit person' who has been approved by the court. However, without proactive measures on the part of the State, 'fit persons' are not likely to come forward on their own. To address this issue, Save the Children UK supported a pilot initiative designed to recruit and train members of the community willing to take on this role. They provide support, supervision, and in some cases temporary foster care, for children pending their trials. The initiative has reportedly significantly reduced the number of children in detention in the pilot locations."[1]
  • For more information, see the toolkit resource section on 'children in street situations'.

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10. Where can I find examples of 'what works' in other countries?

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11. What's the best way to monitor and evaluate diversion and alternatives?

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Footnotes:
1. UNICEF EAPRO, DRAFT Legal System Building Tool – Justice for Children (internal document, not for circulation), p.42.

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