Viability of children's Court

COMING into contact with an element of public administration is not commonly remembered for being one of the most pleasant experiences. To one's dismay, the feeling is not much better when it relates to the administration of justice. It is of course precarious; but it is more precarious for a child than an adult. For a child, the whole process of instituting a complaint, investigation, coming across law enforcers, the court procedures and the later administration of punitive sanctions are dreadfully ceremonious, overtly technical and needlessly menacing. The Children Act 2013 (Shishu Ain 2013) essentially addresses the issues and promises to implement the requirements of the United Nations Convention on the Rights of the Child (CRC).
Following the recommendation of the High Court Division in Roushan Mondal, it has spent a long gestation period of seven years before eventually coming into being. The Act, which has also demonstrated a sensitive response towards other international instruments such as the Beijing Rules, lays foundation for a new era of juvenile justice. However, after about a year of enactment, prospects of hitting the aims still appear to be quite fanciful.
The rights of the children in receiving special treatment and care as well as having special procedures available in the course of justice as enshrined under the Act has an overriding effect. Such rights will therefore prevail over all laws for the time being in force and as such the rights given are unfettered.
The Act offers protections to all children coming into conflict or in contact with law. The list includes suspects, offenders, witnesses, complainants and victims of criminal offences who would fall under the age of 18 by virtue of section 4. As far as an offender or a suspected offender is concerned, a child falling under the age of 9 is presumed to be innocent. Hence, a process involving determination of guilt of a child may only be conducted in relation to the one falling within the age of 9 to 18, invariably referred to as a juvenile.
One or more probation officers must be appointed by the Government for a designated area who would be responsible for ensuring proper application of law in relation to a juvenile coming into contact or conflict with law.
The probation officer must ascertain amongst others the reason why a child has been brought to the police station, meet the child, assure him of all necessary assistance, communicate and co-ordinate with the police to ensure smooth process, trace the parents of the child and to assess the possibility of bail and to arrange placement of the child in safe home before he is produced in the court. Contrary to section 45 of the Act, a police officer who arrests a child shall inform the child's parents, foster carer, the legal guardian or members of the extended family, the Probation Officer and where necessary, the nearest Child Welfare Board, failing which an explanatory report must be filed by him in the Court, on the first day the child is produced there.
The Act provides for setting up the National Child Welfare Board, with its wings present in all Districts and Upazillas. The role of the Board is both advisory and supervisory in terms of monitoring, co-coordinating, reviewing and evaluating the activities of the Child Development Centres and Certified Institutes. Guidelines will be issued by the National Board with a view to implementing policies for rehabilitation and reintegration into family and social life of disadvantaged children and those coming into contact or conflict with law. Whereas the District and Upazilla level boards will be monitoring the implementation of the plans and guidelines in the child development centres and certified institutes.
Since the function of the Board revolves around children coming into contact with law, apparently therefore, there exists no independent non judicial forum to deal with children coming into conflict with the law as required by the CRC.
The provision for having a Child Affairs Desk at every police station headed by a Child Affairs Police Officer in the rank of a sub-inspector is one of the most welcome features of the Act. It is also of particular significance that a female sub-inspector is likely to have a priority for the position. The officer will be responsible for ensuring the friendliest atmosphere possible in the police station and a smooth completion of legal formalities with minimum interference with the child's comfort. Since the trial of a child must be in a separate court (Children's Court), if a child is charged with an adult for an offence, there must be separate charge sheets for each of them.
There must be at least one Children's Court set up in every district headquarters and in every metropolitan area, which will have exclusive jurisdiction to try all matters arising within its territorial bounds concerning children coming into contact or conflict with law. The seating plans, decoration and the procedure of the children's court would be informal, allowing the child to sit as close as possible to his parents, accompanying adult or the probation officer.
The judge and the lawyers would be required to appear without the robes and the bands and to use language understandable and familiar to the child. The judge must consider dispensing the child from the requirement of personal attendance as much as practicable unless it is considered not to be in its best interest. Notwithstanding the provisions of other laws, the child would enjoy highly enhanced prospects of bail, regardless of whether the offence is bailable or not. No child under the age of 9 may be arrested and no child arrested may be hand cuffed or tied with a rope around the waist and must be placed in a safe home before being produced to the court.
The Children's Court may pass orders to ensure safety and confidentiality of the proceedings and to maintain secrecy of all information regarding the child.
The Act has created as many as 13 offences and 1 provision for compensation for different wrongdoings against a child which includes penalties for cruelty to child, engaging a child in begging, allowing a child to be in a brothel, leading or encouraging a child to immoral activity, publishing confidential information in any form of media and causing a child to take intoxicating liquor or harmful medicine. One may further be required to pay a compensation for giving any false information regarding a child in any court proceedings.
After about a year of its enactment, the availability of a child's desk in a police station is quite unheard of. Sufficient number of Children's Courts is yet to be set up in all designated areas. With a large number of limitations in place and a typical mind set of the society at large, one may find the provisions of the Act to be ambitious. However, rights for children demand an unbroken attention of all concerned for establishment of a system conducive to achieving the objectives meditated.

The writer is an Advocate Supreme Court of Bangladesh.