Are diversion and alternatives relevant for all children who come into contact with the justice system?
No. 'Children in contact with the law' is a term which applies to children who come into contact with any justice system (criminal, civil or administrative), in any capacity - whether as subjects of custody hearings, as victims / survivors, as witnesses or as children in conflict with the law (offenders). However, 'diversion' and 'alternatives to deprivation of liberty' apply only to children in conflict with the law.
[See the glossary in the Key reference documents section for further clarification of terms and concepts.]
[See also the toolkit section on What is the criminal justice system?]
What about the overlap between children in conflict with the law & children in need of care and protection?
Many children in conflict with the law are also in need of care and protection and it is very important that this be taken into account when considering the best course of action for the child. Where criminal charges are not dropped altogether in such cases, diversion and alternatives, supported by appropriate child protection interventions, may be especially relevant for this group of children in conflict with the law.
Child protection services often work very closely with the justice sector to provide assistance to children who are victims/survivors. However, it is important to understand that while children in conflict with the law should benefit from child protection services as necessary, children in need of care and protection should never be processed through the criminal justice system as offenders, for want of appropriate social welfare or child protection responses. For example, children in street situations should not be 'rounded up' and detained by the police, and children who have been sexually abused must not be detained 'for their own safety' as is sometimes the case.
Children who have committed an offence but who are under the age of criminal responsibility should benefit from appropriate social welfare and child protection interventions. However, in reality such children may be dealt with by administrative bodies using procedures which result in them nonetheless being detained - albeit not necessarily in a criminal justice facility. Reforms are needed to tackle the 'administrative detention' of children (e.g. underage offenders, children with disabilties and children with unclear immigration or asylum status). The overview diagram from the toolkit section on 'how does it all fit together?' clearly places reform of justice for children in conflict with the law within the broader context of reform of justice for all children, which in turn is within the even broader context of child protection reform. This toolkit promotes the coordinated and systemic planning and implementation of reform efforts.
How do diversion & alternatives fit into overall reform of justice for children in conflict with the law?
Ideally, UNICEF should support comprehensive reform of justice systems to bring them in line with international standards (as reflected in General Comment No. 10 of the Committee on the Rights of the Child on Children's Rights in Juvenile Justice). However, when such comprehensive reform is not possible - for example due to lack of resources or political will - then choices must be made to prioritise interventions. Priorities will vary according to the local context, but prevention, diversion and alternatives should generally be the highest priorities as they are thought to make the most difference, for the most children. See the diagrams linked below to illustrate this point.
It can be difficult, however, to garner support for prevention programmes and traditionally more emphasis has been placed on interventions which are much further down the line, including the reform of detention centres. This is largely because: "One of the main challenges in any prevention programme is the difficulty in producing tangible evaluation statistics – i.e. the difficulty in proving that a programme prevented something from happening. This, combined with the need for a longer term perspective in which to see visible results, impacts on political will and funding to support such programmes. In a context of limited resources and
multiple problems, there is a natural tendency to throw money and effort at the most visible and immediate challenges, often at the expense of prevention work."
Diversion and alternatives fall between prevention and detention. When comprehensive reform of systems is not possible, and when progress on prevention is slow, diversion and alternatives are a useful entry point for reform given their great potential to impact positively on child rights, cost-effectiveness and reduced recidivism. They are the 'first' priority for children already in conflict with the law because the over-use of detention is one of the most serious world-wide child protection problems in relation to justice for children.
How do diversion & alternatives fit into what the UN Convention on the Rights of the Child (CRC) says about children in conflict with the law?
Respect for all children’s rights is the best prevention of children coming into conflict with the law in the first place. Following this, if it is unfortunately too late for prevention, the CRC requires State Parties to ensure that children in conflict with the law are treated in a manner that promotes the child’s reintegration and the child’s assuming a constructive role in society (Art. 40). To this end, it requires that “whenever appropriate and desirable, measures for dealing with […] children without resorting to judicial proceedings” be promoted (i.e. diversion, as provided for in Art. 40.3). The CRC also puts forth that the arrest, detention or imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time (Art. 37(b)) and that a “variety of alternatives to institutional care be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence” (Art. 40.4). This toolkit adopts a child rights-based approach to diversion and alternatives and this is outlined in the 'main principles' section of 'how do we do them?'.
[For information on other international and regional human rights instruments relevant to diversion and alternatives, see the toolkit section on Child rights & the international legal framework]
Learn more about justice systems for children as a whole - selected resources:
1. UN Committee on the Rights of the Child, General Comment No. 10, Children's Rights in Juvenile Justice, 2007
2. UNICEF / PRI Juvenile Justice Training Manual 2006 - Module 1: Introduction to a juvenile justice system [full manual available under Resources]
3. An Outside Chance: Street Children and Juvenile Justice –
an International Perspective, Marie Wernham, Consortium for Street Children, 2004 [full publication available under Resources]
Chapter 5: How does it all work?
Chapter 7: Priorities for intervention
Chapter 8: Recommendations
1. For example, in Central Asia administrative bodies can detain children over, as well as under, the age of criminal responsibility who commit criminal or 'anti-social' acts. They can also impose alternatives to detention. The Juvenile Justice Alternatives Project in Tajikistan works with both criminal courts and welfare bodies (Commission on Child Rights - formerly known as the Commission on Minors) to provide community-based alternatives.
2. 'Prevention' here also means ensuring that children are not unnecessarily brought into conflict with the law in the first place - i.e. for behaviour which does not need to be classified as a crime. For example this would entail the decriminalisation of 'vagrancy' and 'status offences' (behaviour which is criminal for children but which would not be for adults, such as 'truancy' and 'running away').
3. Wernham, M., An Outside Chance: Street Children and Juvenile Justice - an International Perspective, Consortium for Street Children, 2004, p.119.