Header image  
DIVERSION AND ALTERNATIVES
TOOLKIT		  
 
 
 
 
 
 
 
B3.2 Legislation & enforcement

 

What is it & why is it important?

Justice reform for children in conflict with the law requires that legislation be brought into line with international standards. As well as complying with a systemic approach, this comprehensive reform is supported by General Comment 10 of the Committee on the Rights of the Child: GC10 requires that diversion and alternatives be provided in law in order to prevent discriminatory use. Legislative reform and enforcement is therefore promoted as an important component of justice programmes.

Back to top

 

What does it mean for diversion & alternatives?

Key issues :

  1. What legislative reviews and reform initiatives already exist?
  2. Is there a need for legislative reform (what are the existing provisions and discretion in relation to enabling diversion and alternatives)?
  3. Is there capacity in the country to conduct a review (if necessary) and draft new legislation?
  4. What are the processes for drafting and passing new legislation (often involves the Attorney General's Office)?
  5. If there is a lack of capacity for legislative reform, then what can be done to strengthen national capacity?
  6. What are the likely obstacles?
  7. Do reforms guard against ‘net-widening’?
  8. Is it necessary / possible to initiate a pilot implementation project even in the absence of enabling legislation?
  9. Is it necessary / possible to conduct a costing of the new legislation?
  10. Are supporting mandates, guidelines, directives and MOUs in place (in theory and in practice) to support enforcement?
  11. What is the existing capacity of those who will be responsible for enforcement?
  12. What strengths can be built on?
  13. How can the necessary stakeholders be brought on board and supported to implement the necessary changes?
  14. How can children themselves input into the content and process of legislative reform and promoting enforcement? What support and protection will they need to do this?

Back to top

 

Tips for planning and implementation:
  • Many countries struggle with legislative reform due to extended political debates which can lead to lengthy delays and/or compromises which can lead to the weakening of important provisions. Many practitioners therefore 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.
  • As pointed out in the section on 'government commitment', pilot projects can also be a way to accelerate implementation of diversion and alternatives in the absence of enabling legislation. Furthermore, in the absence of provisions for diversion and alternatives in law, pilot projects that have been evaluated as successful can be instrumental in triggering legislative reform. For example, in Albania a pilot project led to policy discussion and new legislation and in Serbia pilot projects and new legislation were introduced in parallel to inform each other.
  • UNICEF law reform guide for juvenile justice: this document will be uploaded here when finalised.
  • Conducting a costing of proposed legislation: Costing out proposed new legislation is a legal requirement in some countries (e.g. South Africa) and the process, although complex and technically demanding, if conducted properly, can provide a valuable opportunity to build government capacity in terms of information systems and reporting. The exercise of costing legislation in South Africa affords a wealth of experience and lessons learned, many of which informed the earlier toolkit section on cost in relation to 'why diversion and alternatives are important.' The full report on the South African experience is available below. Download: ‘Reforming Child Law in South Africa: Budgeting and Implementation Planning’, Ann Skelton for UNICEF Innocenti Research Centre, reprint 2009 [Pdf, 268kb]
  • Guidelines for legislative content:
    • “Authority to impose [diversion or] an alternative to detention at the pre-trial and sentencing stage is generally limited to what options are available under national law (juvenile justice law, penal code, or penal procedure code). Most countries do have some  non-custodial alternatives stipulated in law, though there application is often limited by: unnecessarily rigid legal restrictions, for example pre-trial detention is mandatory for certain classifications of offences; or the penal code stipulates minimum mandatory periods of imprisonment for serious crimes."[1] 
    • Refer back to the 'definitons and discussion' sections of the toolkit to ensure that the ground rules / legal safeguards are included in any legislative reform for diversion, alternatives to detention and restorative justice.
    • The document here includes notes on the legal basis (especially for police) on when to arrest, detain and when to release children in conflict with the law. [Draft] Police guidelines on detention as a last resort, Chris Graveson, Inspector, National Co-ordinator : Youth Aid, New Zealand Police, 2009 [Word 75kb]

Back to top

 

How does this link to the other elements of the Protective Environment Framework and the 3 principles?

A. Child rights-based approach: States Parties to the CRC are obliged to incorporate CRC rights (including those relating to diversion and alternatives) into domestic legislation. This then provides a solid framework for duty-bearers to fulfill rights and claims-holders to demand them. Legislative content in relation to diversion and alternatives, as well as including the specific technical provisions discussed above, must reflect the 'umbrella rights' of the CRC: the right to life, survival and development (Art. 6), non-discrimination (Art. 2), best interests of the child (Art. 3), the right to be heard (Art. 6) and implementation to the 'maximum extent of available resources'.

B. Systemic approach: It is possible that other initiatives already exist in relation to legislative reform and enforcement - e.g. through rule of law reform - which can be capitalised on for diversion and alternatives more specifically. See below for more detail on each of the 8 PEF elements.

C. Restorative justice approach: Legislation and enforcement should allow for and promote restorative justice approaches where possible and appropriate. There may be existing legislative reform in this area in the form of traditional or non-formal justice systems, or in the form of restorative justice approaches for adults in conflict with the law which can be capitalised on.

Other elements of the PEF:

#1. Government commitment to fulfilling protection rights: 'Government commitment' must be reflected in legislation and enforcement. It is also a pre-requisite for legislation and enforcement and so the 2 elements are closely linked.

#3. Attitudes, tradition, customs, behaviour & practice: Policy-makers, legislators and enforcers are shaped from an early age by general opinions, traditions and customs. Attitudinal and behaviour change therefore apply to these individuals. Furthermore, they can be strongly influenced by public opinion which is, in turn, shaped by attitudes, tradition and customs and so addressing this area has an indirect impact on securing the commitment necessary for positive legislative reform and enforcement which reflects international standards.

#4. Open discussion, including engagement of media & civil society: 'Open discussion' and media and civil society engagement is a key strategy for engaging in debate to develop legislative reform in line with international standards and to promote and sustain support amongst stakeholders for such reforms.

#5. Children's life skills, knowledge & participation: Aspects of children's empowerment need to be reflected in legislation and enforced in practice (e.g. CRC Art. 6 right to life survival and development, Art. 12 -participation, Art. 13 & 17 - right to information, Art. 42 - wide dissemination of the CRC etc.).

#6. Capacity of those in contact with children: New legislation is unlikely to be implemented in pratice unless it is accompanied by sufficient awareness-raising, capacity building and resourcing of relevant stakeholders.

#7. Basic & targeted services: The provision of services for diversion and alternatives needs to be mandated and regulated by legislation (primary legislation and supporting legislation and guidelines).

#8. Monitoring & oversight: Responsibility for monitoring and oversight of diversion and alternatives needs to be set out in internal guidelines and inter-agency protocols.

Back to top

 

Footnotes:
1. UNICEF EAPRO [DRAFT] Legal Systems Building Toolkit, 2008, pp. 40-41 [Internal document, not for circulation].
 

Back to How do we 'do' diversion & alternatives?

[How do we 'do' diversion & alternatives? / Steps for implementation / Planning & implementation / Legislation & enforcement]
 
Further information