Module 4

Models of Juvenile Justice and Juvenile Delinquency Prevention Programs

Introduction:
Children do not have the same psychosocial and decision-making capacity as adults.
The developmental immaturity of young people lessens their criminal culpability.

Any decrease in the crime rate, however small, is desirable, there are more restorative
ways in handling cases of children who offend without criminalizing them. These include
providing children with intervention, rehabilitative services, and mentoring from positive role
models. Criminalizing children will only result in discrimination against them and lower their
chances to have a better future.

The Juvenile Justice Welfare Act (JJWA) lays out specific measures to handle children who
are exempt from criminal responsibility and who commit serious offenses and repeat offenders.
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The JJWA provides sufficient measures to hold children accountable for their
wrongdoings, while taking into consideration their age and developmental capacities. Measures
to assist children under the JJWA include: prevention, intervention, diversion, rehabilitation,
reintegration to the community.

Diversion – refers to an alternative, child-appropriate process of determining the responsibility

and treatment of a child in conflict with the law, on the basis of the child’s social, cultural,
economic, psychological or educational background, without resorting to formal court
proceedings. Diversion is the generic term given to describe the various processes that may be
used to ensure that CICL are prevented from entering the formal justice system.

Diversion Program – refers to the program that the child in conflict with the law is required to
undergo after being found responsible for an offense, without resorting to formal court
proceedings.

Initial contact with the child – refers to the apprehension or taking into custody of a CICL by
law enforcement officers or private citizens. It includes the time when the child alleged to be in
conflict with the law receives a subpoena under Section 3(b) of Rule 112 of the Revised Rules
of Criminal Procedure or summons under Section 6(a) or Section 9(b) of the same Rule, in
cases that do not require preliminary investigation or where there is no necessity to place the
child alleged to be in conflict with the law under immediate custody.

Intervention – generally refers to programmatic approaches or systematic social protection

programs for children that are designed and intended to:
a. promote the physical and social well-being of the children
b. avert or prevent juvenile delinquency from occurring
c. stop or prevent children from re-offending.

Referral – refers to a process where a duty-bearer, within the juvenile justice and welfare
system, endorses the CICL to the appropriate service provider for appropriate care or
intervention. ‘Referral’ includes the endorsement of the victim for appropriate assistance and
intervention.
 Restorative justice involves bringing together the
offender and the victim in mediation in a community
setting, using respected community members as
mediators. These elements were common to most
traditional community justice systems and had, as
they do today, the goal of restoring balance and
harmony in the community by the offender making
some form of reparation and/or apology to the victim
www.kdnk.org/post/restorative-justice-there-way- to repair the harm done.
decrease-recidivism-within-criminal-justice-system

Although most common at the community level,

restorative justice can take place while a child is in pretrial detention or even after finding guilt
and being sentenced by a court. Its use in contemporary times, however, requires that the
offender admits to the offence, that certain justice safeguards are met and that the child’s rights
are not infringed.

In restorative justice, the role of the community is given due recognition in resolving cases
involving children through its own mediation so that reconciliation between offenders and victims
can take place

Lesson 1
Systems Models vs. Restorative

What is a juvenile justice system?

A juvenile justice system encompasses legislation, norms, standards, guidelines,
policies, procedures, mechanisms, provisions, institutions and bodies specifically applicable to
children in conflict with the law who are over the age of criminal responsibility. This means that
the juvenile justice system does not include primary (i.e. universal) or secondary (i.e. targeted)
prevention programs to reduce offending by children, but does include tertiary prevention, i.e.
the interventions throughout the process (from arrest onwards) that aim at avoiding repeat
offending. State policy to reduce offending by children should, of course, provide for primary and
secondary prevention, but this is generally regarded as forming part of a social welfare
provision, and not part of a juvenile justice system.

By nature, a juvenile justice system is complex, involving a variety of government

bodies, agencies, departments, organizations and institutions, such as the police, prosecutors,
lawyers, the judiciary, social welfare bodies, education bodies, probation services, detention
facilities, after-care bodies and community-based non-governmental organizations.

Who should fall within a juvenile justice system?

@ Juvenile justice legislation covers all children who are over the minimum age of
criminal responsibility but under the age of 18. While many States have implemented a
juvenile justice system (in full or partially) since ratifying the CRC, these systems sometimes set
an upper age limit below the age of 18. Some States set the age as low as 15 after which the
child will be tried as an adult, rather than in the juvenile justice system. This conflicts with the
provisions of the CRC that clearly require that all children under the age of 18 who are in conflict
with the law should receive specialized treatment.

@ Legislation contains a minimum age of criminal responsibility. The age of criminal

responsibility is the minimum age below which the child shall be presumed not to have the
capacity to infringe the penal law. A child under the minimum age of criminal responsibility
cannot be formally charged with an offence or subjected to any criminal law procedures or
measures. Neither the CRC nor other international instruments set a minimum age of criminal
responsibility.

CRC has set 12 years of age as the absolute minimum age of criminal responsibility. However,
a higher minimum age criminal responsibility is encouraged. The Philippines has set 15 years of
age as the minimum age of criminal responsibility.

@ Age of criminal responsibility is not lowered for serious offenses, and is not dependent
upon an assessment of the child’s maturity by the court a child who is over the age of criminal
responsibility, but under a specified age, can only be prosecuted if he or she is deemed to
understand that the action is not merely naughty or mischievous but seriously wrong. This
approach is sometimes referred to as “doli incapax” (incapable of doing harm) and sometimes
as based on “discernment”.

In order to prove that the child had “discernment”, the police, prosecutors or courts are required
to carry out an assessment of a child who falls within the set age range, prior to investigation or
trial, to decide whether the child understood his or her actions and therefore whether to instigate
proceedings.

@ Decriminalization of status offenses and exploitation. Status offenses are offenses that
can only be committed by persons of a certain status, generally children. The most common
examples of status offenses are chronic or persistent truancy, running away, being unruly,
incorrigible or simply badly behaved with parents or at school, violating curfew laws or
possessing alcohol or tobacco.

The Riyadh Guidelines call for the repeal of status offenses, and the Committee on the Rights of
the Child has recommended that such offenses be abolished to ensure equality between
children and adults. Status issues should be treated instead as a social welfare issue under the
child protection system.

General principles of the CRC

There are four principles that underpin the CRC and apply just as
much to juvenile justice as to any other issue of children’s rights.
These four principles should all be reflected in a juvenile justice
system. These principles are:
• Best interests (Article 3).
• Non-discrimination (Article 2).
• The right to life, survival and development (Article 6).
• The right to be heard (Article 12)
www.slideshare.net/aybipolidario/convention-
@ Best interests of the child on-the-rights-of-the-child-81489523

The concept of best interests operates both in relation to children as

a group and to each individual child who finds him or herself subject to juvenile justice
proceedings. In considering the best interests of children as a group, the Committee on the
Rights of the Child has stated that the CRC and the Standards and Norms together “call for the
adoption of a child oriented system that recognizes the child as a subject of fundamental rights
and freedoms and stresses the need for all actions concerning children to be guided by the best
interests of the child as a primary consideration”.
Philippines: The Juvenile Justice and Welfare Act of 2006, Sec 4(b) states the “‘Best Interest of
the Child’ refers to the totality of the circumstances and conditions which are most congenial to
the survival, protection and feelings of security of the child and most encouraging to the child’s
physical, psychological and emotional development. It also means the least detrimental
available alternative for safeguarding the growth and development of the child.” Source:
Juvenile Justice and Welfare Act of 2006, Sec. 4(b).

General principles of the juvenile justice system

The purpose of Intervention – to promote the rehabilitation of CICL
– the purpose of any action taken in relation to a child who is recognized as having committed a
criminal offense is to be directed towards reintegration of the child.

CRC highlighted the “fundamental principles” for dealing with children in conflict with the law,
namely:
• “Treatment that is consistent with the child’s sense of dignity and worth. This principle reflects
the fundamental human right enshrined in Article 1 of the Universal Declaration of Human
Rights.... This inherent right to dignity and worth… has to be respected and protected
throughout the entire process of dealing with the child, from the first contact with law
enforcement agencies and all the way to the implementation of all measures for dealing with the
child;
• Treatment that reinforces the child’s respect for the human rights and freedoms of others. This
means that, within the juvenile justice system, the treatment and education of children shall be
directed to the development of respect for human rights and fundamental freedom
• Treatment that takes into account the child’s age and promotes the child’s reintegration and
the child’s assuming a constructive role in society. This principle must be applied, observed and
respected throughout the entire process of dealing with the child, from the first contact with law
enforcement agencies all the way to the implementation of all measures for dealing with the
child. It requires that all professionals involved in the administration of juvenile justice be
knowledgeable about child development, the dynamic and continuing growth of children, what is
appropriate to their well-being, and the pervasive forms of violence against children;
• Respect for the dignity of the child requires that all forms of violence in the treatment of
children in conflict with the law must be prohibited and prevented...”

Prohibition of torture, cruel, inhuman or degrading treatment or punishment “torture”

means “any act by which severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him or a third person information or a
confession, punishing him for an act he or a third person has committed or is suspected of
having committed, or intimidating or coercing him or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other person acting in an official capacity.
It does not include pain or suffering arising only from, inherent in or incidental to lawful
sanctions.”

In deciding whether a particular act or course of behavior constitutes torture, inhuman or

degrading punishment or treatment, the court will examine and take into account the individual
circumstances of the victim, including the fact that the victim is a child. It has been argued that
treatment that constitutes ill treatment for an adult, such as prolonged solitary confinement, may
be a terrifying ordeal for a young child and amount to torture.

Detention as a last resort and for the shortest appropriate period of time the CRC provides that
detention shall only be used as a last resort and for the shortest possible time. In addition, Rule
17 of the Beijing Rules provides that detention “shall not be imposed unless the juvenile is
adjudicated of a serious act involving violence against another person or of persistence in
committing other serious offenses and unless there is no other appropriate response”.

Presumption of innocence the CRC provides that every child “shall be presumed innocent
until proven guilty according to law”. The presumption of innocence is a fundamental principle in
human rights law and can be found both in the Universal Declaration of Human Rights
(UDHR).

Restorative justice is an approach in administering justice that focuses

on repairing the harm done to the victim and the community. It ensures
that:
1) The victim, offender, and the community fully participate in the
process;
2) Restitution is offered to the victim;
3) The offender has the opportunity to acknowledge the harm he or
she has caused; and
4) A sense of community is restored. The offender also needs to do
community work and be given the opportunity to be reintegrated in
http://ccjs.sonoma.edu/news-events/
society as a valued and contributing member. professor-tosouni-elected-vp-restorative-
resources-0

The fundamental principles of restorative justice as follows:

1) Victims and the community have been harmed and need restoration;
2) Violations create obligations and liabilities;
3) Restorative justice seeks to heal and put right the wrong; and
4) Restorative justice belongs to the community.

Victims and the community have been harmed and need restoration
The commission of a crime breaches the relationships of the offender, the victim and the
community where the crime occurs. The primary victims are those most directly affected by the
offense but others, such as family members of victims and offenders, witnesses, and members
of the affected community, are also victims. Since crime has created an imbalance in the
community with fear, distrust and anger, there is the need to restore and address the
relationship that was harmed by the crime. Victims, offenders and the affected communities,
therefore, become the key stakeholders in the restorative justice process.

The restorative justice process maximizes the input and participation of these parties —
especially the primary victims and the offenders — in the search for restoration, healing,
responsibility and prevention. The role of these parties will vary according to the nature of the
offence as well as the capacities and preferences of the parties. The state has limited roles,
such as investigating facts, facilitating processes and ensuring safety, but the state is not a
primary victim.

Violations create obligations and liabilities

The offender’s obligation, which corresponds to the harm inflicted by the crime, is to make
things right as much as possible. Such an obligation may be difficult and even painful but is not
intended for vengeance or revenge. The restorative justice process empowers the victims by
allowing them to effectively participate in defining the obligations of the offenders. The
offenders, on the other hand, are given the opportunity and the encouragement to understand
the harm they have caused the victims and the community. They are also helped in developing
plans for taking appropriate responsibility. The voluntary participation of the offenders in the
process is maximized while coercion and exclusion are minimized. However, offenders may be
required to accept their obligations if they do not do so voluntarily.

Restorative justice seeks to heal and put right the wrong

The need of the victims for information, validation, vindication, restitution, testimony, safety and
support are the starting points of justice. The restorative justice process provides a framework
that promotes the work of recovery and healing on the part of the victim. The process
maximizes opportunities for exchange of information, participation, dialogue and mutual consent
between victim and offender. Face-to-face encounters are appropriate for some instances while
alternative forms of exchange are more appropriate in others. The victims have the principal role
in defining, and directing the terms and conditions of the exchange as well as the outcomes.
Mutual agreement takes precedence over imposed outcomes.

In addition, opportunities are provided in the process to offenders for remorse, forgiveness and
reconciliation to promote healing and restore the harm done.

Restorative justice belongs to the community.

Crime disrupts peace and harmony in the community. Thus, community members need to be
actively involved in working for justice. The justice process draws from community resources
and contributes to the building and strengthening of community and solidarity. The justice
process attempts to promote changes in the community to prevent similar harms from recurring.

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Retributive justice encourages the rule of law and the administration of sanctions or punishment
to the crime in violation of laws enforced by the state.

Retributive Justice and Restorative Justice Compared

Retributive Justice Restorative Justice
Crime is an act against the state, a violation Crime is an act against another person and
of a law, an abstract idea the community
The criminal justice system controls crime Crime control lies primarily on the community
Offender accountability is defined as taking Crime has both individual and social
 punishment dimensions of responsibility
Crime is an individual act with individual Crime has both individual and social
responsibility dimensions of responsibility
Punishment is effective: Punishment alone is not effective in changing
a. Threat of punishment deters crime behaviour and is disruptive to community
b. Punishment changes behavior harmony and good relationships
Victims are central to the process of resolving
Victims are peripheral to the process
a crime
The offender is defined by capacity to make
The offender is defined by deficits
reparation
Focus on problem solving, on
Focus on establishing blame or guilt in the
liabilities/obligations, on the future (what
past (did s/he do it?)
should be done?)
Emphasis on adversarial relationship Emphasis on dialogue and negotiation
Restitution as a means of restoring both
Imposition of pain to punish and deter/prevent
parties; goal of reconciliation/restoration
Community on sideline, represented abstractly
Community as facilitator in restorative process
by state
Response focused on harmful consequences
Response focused on offender’s past
of offender’s behaviour; emphasis on the
behavior
future
Dependence upon proxy professionals Direct involvement by participants

Lesson 2 – Other Models of J.D.

1. The welfare/treatment model of youth justice

 Based on predestined actor model of criminal behavior notions
that young people are not fully responsible for their actions
because of biological, psychological and social factors.
 Treatment and rehabilitation are advocated rather than
punishment.
 Cases are to be dealt with by welfare professionals and experts
and not the criminal justice system.
 Later variants of the model recommend limited or non- www.istockphoto.com/illustrations/

intervention in accordance with the principles of the victimized actor juvenile-justice

model of criminal behavior.

The notion of the ‘responsible individual’ enshrined in the justice/punishment model of

intervention was, moreover, replaced by the concept of the ‘responsible family’ and the juvenile
court was empowered to play the part of the responsible parent by establishing child welfare as
the primary principle of intervention. There was thus to be an increasing state intervention in
family life and socialization under the guise of protecting children who were considered to be
living in ‘undesirable’ surroundings... that a welfare-orientated juvenile justice system based on
the discretion of social work and medical ‘experts’ erodes the rights of children to natural justice.

The ‘welfare model’ adopts a positivistic approach that is based on the assumption that juvenile
wrongdoing is the product of social or environmental factors for which the young person cannot
be held individually responsible. Accordingly, the primary goal of the youth justice system is to
provide appropriate help or treatment for offenders, rather than punishment. Indeed, young
people who are vulnerable or in trouble are considered to be in need of protection from the
potentially harmful and corruptive influences of the adult world, including the adult criminal
justice system. Consequently, the primary emphasis is on the ‘needs’ and ‘best interests’ of the
child rather than the ‘deeds’ they may have committed. These paternalistic assumptions are
also reflected in the institutional arrangements that – in some jurisdictions at least - have come
to be associated with the welfare model. The most distinctive of these arrangements has been
the creation of a separate set of ‘socialized welfare tribunals’ as alternatives to the regular
criminal courts.

2. Justice
The justice/punishment model of youth justice
 Based on rational actor model of criminal behavior notions that young people have free-will
and choose to offend.
 Offenders should be held responsible for their actions and punished if they transgress.
 The level of punishment inflicted should be commensurate with the seriousness of the
offence committed.
 Offenders should be punished for the offence committed and not on the basis of whom they
are or the social conditions in which they live.

The ‘justice model’ espouses a ‘classicist’ approach that is based on the assumption that even
young people are – with certain limited exceptions – endowed with free will. Because they are
considered to be responsible for their actions, it is felt acceptable for them to be held
accountable in law for what they have done, which means that the primary focus is on the
‘deeds’ of the child rather than their welfare ‘needs’. Accordingly, the principal goal of the youth
justice system – as of the adult criminal justice system is initially to determine the suspect’s
legal guilt or innocence and next, if convicted, to assess the degree of culpability that they bear.
Punishment should then be apportioned in accordance with the seriousness of the offence and
the offender’s corresponding ‘just deserts’. Because the system is acknowledged to be
unequivocally engaged in the administration of punishment that often entails a loss of liberty
there is a greater emphasis – formally at least – on the need for procedural rights of ‘due
process’ and for appropriate constraints to be placed on the punitive power of the state.

The procedural safeguards that are associated with the justice model include various rights: to
be notified in advance of the specific charges a young person is facing; to legal representation
(paid for out of public funds if necessary); to a fair and impartial hearing; to confront and cross-
examine witnesses and to be

presumed innocent until proven guilty (which includes a privilege against self-incrimination). The
range of sentencing ‘outcomes’ that are associated with the justice model more closely
resemble those available in adult criminal courts, with a strong emphasis on the need for
proportionate, finite and consistent penalties rather than the open-ended, indeterminate and
highly individualized orders that are characteristic of the welfare model.
3. Minimum Intervention
The philosophy that underpins the ‘minimum intervention model’ is derived in part from
criminological labeling theory’, which suggests that all official forms of processing young
offenders are potentially harmful to them since they ‘label’ and stigmatize them as criminals.
This makes it more, rather than less, difficult for them to desist from crime in future since it may
make it harder for them to engage in lawful activities, for example by rendering them
unemployable. Indeed, it may also increase the risk of them participating in illicit activities, for
example by confining them in custodial institutions where they can meet other offenders, learn
from them and be drawn into criminal subcultures. Placement in custodial institutions could for
this reason constitute the most harmful and counter-productive of all official interventions.

www.slideshare.net/CJCJmedia/12-effective-juvenile-justice-intervention

A ‘minimum intervention’ strategy that incorporates some or all of the following elements:
(i) avoiding the use of custodial or residential institutions wherever possible;
(ii) using community-based alternatives to custody wherever possible in cases that do call for a
punitive intervention (linked with a policy of diverting young offenders from custody);
(iii) avoiding prosecution altogether where possible, by encouraging prosecutors to discontinue
proceedings and encouraging the police to ‘caution’ or warn young offenders instead (linked
with a policy of diversion from prosecution);
(iv) taking care to avoid ‘net-widening’ by ensuring that the above interventions are never used
for young people who would otherwise have been dealt with informally (linked with a policy of
targeting and monitoring);
(v) advocating a policy of ‘decriminalization’, certainly with regard to ‘status’ offenses, where
they exist, but also at the very least in respect of minor criminal offenses which, when
committed by young people, would no longer carry even the threat of criminal sanctions; and
(vi) advocating a policy of ‘depenalization’ whereby even young offenders who commit more
serious offenses would no longer come within the jurisdiction of the criminal courts, but would
be dealt with instead by means of civil proceedings administered by an appropriate ‘child-
sensitive’ institution or tribunal.

4. Restorative model
The ‘restorative justice model’ is based on a radically different set of assumptions about the
concept of crime itself, the relationship between offenders, victims, citizens and the state, and
also about the most appropriate ways of responding to crime. Whereas traditional criminal
justice theorists have portrayed crime first and foremost as an offence against the state, the
restorative justice model places particular emphasis on the harm that is done to the victim,
whose interests were for many years neglected by mainstream

criminal justice agencies and policy-makers alike. Traditional approaches have tended to place
the responsibility for dealing with crime firmly in the hands of state-appointed agencies, who are
expected to deal with offenders (and almost exclusively with offenders) in accordance with ‘the
public interest’. In marked contrast, the restorative justice model advocates a policy based on
involving those who are most directly affected by a particular offense – victims, offenders and
their ‘communities of care’– in decisions about how it should be resolved. Moreover, such a
policy gives primacy to those interests as opposed to the more general and abstract ‘public
interest’.

The restorative justice model advocate a radical reformulation of the state’s role and
responsibilities with regard to crime, which can be expressed in terms of the ‘principle of
subsidiarity’. Instead of the state – or its representatives within the criminal justice agencies –
assuming direct and primary responsibility for ‘dealing with’ crime and its aftermath – its chief
function should be to act as facilitator, provider of information and resources, and deliverer of
services.

5. Re-integrative model
The re-integrative tutelage model of youth justice
• Based on the left-realist notion that crime requires a comprehensive solution and there must
be a ‘balance of intervention’.
• Young people who commit crime must face up to the consequences of their actions and take
responsibility (rational actor model of criminal behavior).
• An effective intervention needs to address the causes of offending as well as punishing the
offender (predestined and rational actor model).
• Part of a wider set of educative and welfare strategies that seek to reintegrate socially and
economically sections of society

6. Neo-correctionalist
The ‘neo-correctionalist model’ resembles the justice model inasmuch as both adopt an
uncompromisingly punishment-oriented approach, but in other respects they are very different
‒ the neo-correctionalist approach is more likely to emphasize the responsibilities that young
offenders, and even their parents, owe towards others, including the victim, the community
and the state. And whereas the justice model makes at best modest claims as regards its
ability to achieve any reduction in the incidence of crime- preferring to ensure that offenders
receive the punishment which is most just rather than the most effective in terms of crime
reduction
‒ the neo-correctionalist approach espouses a much more ambitious crime control goal for
the youth justice system. Under this model, the prevention of offending by young people is
accorded primacy, and all other aims are subordinated to it. For example, reparation
‒ for victims and also the wider community - is favoured chiefly insofar as it may contribute to
a reduction in re-offending rates rather than something to which recipients should be
entitled as of right.

Another aim of the neo-correctionalist model is to improve the efficiency of the youth justice
system, for example by coordinating the activities of the various criminal justice agencies,
speeding up the criminal justice process and increasing the effectiveness of the various
interventions that are directed at young offenders. In addition to these purely pragmatic
considerations, however, the principal philosophical foundation for the neo-correctionalist
approach derives from an unashamedly populist ‘law and order’ ideology that equates
effectiveness with the imposition of tough, intensive and unashamedly punitive interventions. In
certain other respects, the neo-correctionalist model more closely resembles the welfare model
than the justice model with which it is more commonly compared. This is particularly true with
respect to the type of behavior it seeks to prevent, which is not confined to purely criminal
behavior but often extends also to acts of ‘pre-delinquency’, including truancy, and other non-
criminal forms of rowdy or anti-social behavior.

Lesson 3 – Community-based diversion

The Beijing Rules and Diversion rules related to the concept of diversion:
• Positive measures that fully mobilize all possible resources – the family, volunteers, schools,
and other community institutions – shall be given due attention to promote the well-being of and
to effectively, fairly and humanely deal with the juvenile in conflict with the law using the
minimum intervention of the law.
• The use of diversion to deal with juvenile offenders without resorting to formal trial by
competent authorities such as courts, tribunals, boards, and councils, among others, shall be
given due consideration wherever appropriate.
• The police, prosecution or other agencies dealing with juvenile cases may, at their discretion
without recourse to formal hearings, dispose of cases in accordance with the criteria laid down
in the respective legal system and the principles contained in the Rules.
• A precondition to diversion will be the free consent of the juvenile, his/her parents or guardians
review-able by a competent authority upon application.
• To dispose of juvenile cases under discretion, juvenile offenders shall undertake community
programs such as temporary supervision and guidance, restitution, and compensation of
victims.
• Where diversion is not appropriate, detention of the juvenile should be used as a measure of
last resort, for the shortest period of time possible and separate from adult detention.

Based on these rules, diversion can be defined as:

• Any act with the end goal of disposing of the case involving a child offender without resorting
to formal trial by any competent authority like courts, tribunals, boards, councils and the like
(The Beijing Rules, 1985);
• An alternative child-appropriate process of determining the responsibility and treatment of a
juvenile in conflict with the law on the basis of his social, cultural, economic, psychological or
educational background without resorting to formal court adjudication (Government of the
Philippines, Supreme Court 2002:7).
• The channeling of cases from the mainstream justice system of courts and prisons into
programs that aim to improve the child’s life-skills and self-esteem and guide them away from a
life of crime (FREELAVA 2003:18).

Implementing body (Local Level)

Composition of the Children’s Justice Committee (CJC)
The CJC is headed by two members of the Lupong Tagapamayapa (Village Justice
Committee) who acts as the Chairperson and Co-Chairperson.
Other members are the following:
a Barangay Councillor,
the Barangay Secretary,
the Gender and Development (GAD) Project Officer/Focal Point Person,
 the Sanggunian Kabataan (SK or Youth Council) Chairperson,
the Chief Barangay Tanod (Village Sentinels),
the Community Volunteers represented by their Team Leader, the Peer Educators, and
the duly-accredited NGO.

To maximize existing mechanisms and the different services provided by the local government,
the CJC should also involve the:
Women and Children Protection Desk (WCPD) Police Officer,
nearest School Guidance Counsellor and
assigned Department of Social Welfare and Services (DSWS) Social Worker in the
community

The Community-Based Diversion Process

The process of community-based diversion generally come in six stages in this particular order:
 Arrest or apprehension of a child offender;
 Interview and case profiling or in-taking;
 Provision of information and discussion of the diversion programme;
Mediation
 Preparation of the settlement agreement and execution of diversion activities; and
 Rehabilitation and reintegration.
 Community-based prevention of child offending and re-offending is a continuing process.
BCPC Barangay Council for the Protection of Children
 The CJC mediators should exhaust all means to arrive at a settlement and this includes
relentlessly convincing the complainant to eventually agree to the diversion process. If the
complainant is not amenable to settling the case, not satisfied of the mediation process or does
not see any positive consequences of the proposed diversion, a fifteen-day cooling off is
enforced under the Katarungang Pambarangay or Village Justice System. The mediation
process is suspended to “cool down” both parties and reconvened as soon as the prescribed
time lapses.

In cases where the child offender has committed offenses beyond the case eligibility
criteria of diversion or has committed the offence for the third time and has become a recidivist,
the case is automatically forwarded to the police for the filing of case in court.

The key to a successful mediation is when the offending child asks for forgiveness or
signifies remorse of his/her action, agrees to repair the harm done, and restores the damaged
condition of the victim. These actions should be done in the presence of the complainant (if
applicable) who would sit in the mediation conference together with the offenders’ parents and
other CJC members. On the other side of the equation is the forgiving and amenable victim.
Only then could the mediation process prosper, a settlement agreement be reached and
diversion programme/activities be possible.
 Process Flow of Community-Based Diversion and Prevention of Offending

Kinds of Diversion
The use of diversion seeks to resolve the case of a child in conflict with the law without recourse
to a formal hearing before the relevant competent authority. International guidelines recommend
that consideration should be given, wherever appropriate, to dealing with children in conflict with
the law without resorting to a formal hearing before the competent authority. Diversion may
range from an informal police caution to a reconciliation scheme between victim and accused
run by social or welfare services. A key principle of diversion is that the child and/or his or her
parents or guardian must consent to the diversion of the childís case. Typically, this also means
that the child accepts responsibility for the offence. Diversion may involve recourse to solutions
based on the principle of restorative justice.

Diversion Proceedings: Kinds of Diversion Program

1. At the level of the Punong Barangay:
a. Restitution of property - return of the property to the rightful owner.
b. Reparation of the damage caused - repair of the damaged property by the CICL himself.
c. Indemnification for consequential damages – this includes reimbursement of the
expenses incurred by the owner in the repair or restoration of the damaged property or in
mending the injury; Payment of the actual cost of restoring the damaged property; and
Replacement of the lost/sold/broken property.
d. Written or oral apology - Oral and written apologies should include the promise of the
CICL not to commit the same offense again and the acceptance of possible punishment for
re-offending
e. Confiscation and forfeiture of the proceeds or instruments of the crime. Proceeds of the
crime shall be given to the offended party, as part of the indemnification by the CICL.
f. Care, guidance and supervision orders - includes giving advice to the CICL and her/his
parents/guardians (when necessary) by the authority conducting the diversion proceedings
g. Counseling for the child in conflict with the law and the child’s family - : It is helping the
child and his/her family become aware of themselves, and the ways in which they react to
the behavioral influences of their environment
h. Attendance in trainings, seminars and lectures on:
(i) anger management skills;
(ii) problem solving and/or conflict resolution skills;
(iii) values formation; and
(iv) other skills which will aid the child in dealing with situations which can lead to
repetition of the offense;
i. Participation in education, vocation and life skills programs.
2. At the level of the law enforcement officer and the prosecutor:
a. Diversion programs specified under paragraphs (1) (a) to (1)(i) herein; and
b. Confiscation and forfeiture of the proceeds or instruments of the crime;
3. At the level of the appropriate court:
a. Diversion programs specified under paragraphs (a) and (b) above;
b. Written or oral reprimand or citation;
c. Fine;
d. Payment of the cost of the proceedings; or
e. Institutional care and custody.
Other forms of diversion program
 Assist in caring infants and other children with special needs, the elderly and those with
disabilities in government and non-government institutions;
 Act as care-giver, tutor, reader, etc. to preschool children in Day Care Centers, street
children , senior citizens and other institutions;
 Conduct tree planting, vegetable gardening, garbage collection, cleaning of surroundings,
drainage of canals and other environmental sanitation activities;
 Assist in the repair of center’s facilities such as recreational and sports centers, furniture,
kitchen, bedrooms and other significant structure;
 Assist in the construction or repair of playground and sport facilities as well as initiate
beautification projects such as painting, decorations of pathways, planting of ornamental
plants, etc..
 Access to other government agencies providing programs for the youth such as: the
Department of Labor and Employment (DOLE) Department of Tourism (DOT), Department
of Public Works and Highways (DPWH), Department of Health (DOH), Department of
Environment and Natural Resources (DENR).

Rehabilitation and Reintegration of CICL and Intervention

This is the last stage of the entire diversion process, it is also the beginning of a much bigger
and broader process of restoring the life and self-worth of a child offender. Rehabilitation is the
process wherein the child’s negative behaviour and attitudes are rectified. It enables the child to
change his/her negative behaviour into something positive and acceptable to the community.
Rehabilitation is integral to the process
of reintegration. Reintegration, on the other hand, is the process, which promotes or facilitates
the acceptance of the child back to the community.

It is the healing of the victim’s and the community’s wounds that was inflicted on them by the
offence. Creating a culture of social acceptance and inclusion on the part of the community is
another big task of barangay officials for the reintegration of diverted CICL to work. In the
process, reintegration could also be the venue for rehabilitating the child offender. To
rehabilitate a diverted CICL, the CJC undertakes various psycho-social interventions such as,
but not limited to, case monitoring, follow-up and continuous counselling, peer education, values
formation, and formal educational assistance. These psycho-social interventions facilitate the
necessary behaviour change of the diverted child from a life of misconduct and offending
towards becoming a productive citizen in the community.

Such interventions should be customized depending on the particular need of the diverted CICL
and the preparedness of the family. The reintegration process, through other forms of psycho-
social interventions
facilitated by the CJC, aims to bring the offending child back into the community — to a life of
“normalcy” and social acceptance, and where children’s rights and welfare are protected and
upheld. Depending on the availability of resources and opportunities in the barangay,
reintegration activities include, but are not limited to, socio-civic activities such as cleanliness
drives, community service endeavors, sports development activities, fun and games, music and
entertainment, vocational training and livelihood skills development, and functional literacy,
among others.

Rehabilitation and reintegration activities are best conducted in the family community continuum
for an offending child to rectify his/her negative behaviour towards a productive and
independent life later on. However, if the circumstances of the child do not permit placing
him/her back to the community, residential care shall be considered an option for the child’s
rehabilitation and reintegration. These circumstances could include the following:
1) Parents are not economically and emotionally prepared to accept the diverted child; or
2) The victim is either a member of the family or a nearby neighbour who may have the
propensity to perform violent acts detrimental to the child’s rehabilitation and reintegration.

Community-Based Prevention of Offending

Which is essentially a community education activities, as a strategy complements the
rehabilitation and reintegration process of diverted CICL. Community-based prevention of
offending cuts across the different stages of the community-based diversion work as it is an
ongoing process. These prevention activities intend to minimize the commission of offenses by
potential and actual CICL and their eventual arrest by law enforcers. These community-based
education sessions shall conscienticize and educate parents or legal guardians and community
members to support the prevention of previous CICL from re-offending. To improve parenting
roles and to guide their children away from offending, parents and community members should
be made aware and educated about their parental responsibilities and the rights of their
children.

Guidelines for Implementing the Community-Based Diversion Programme

This section provides guidelines for programme actors and other implementers of community-
based diversion and prevention of child offending programmes. This set of guidelines partly
applies to persons in authority and community members who are involved in law enforcement
and prevention of child offending. These guidelines are divided into eight parts, which are as
follows:
A. Handling apprehension or invitation of the CICL;
1) Interviewing and case profiling;
2) Arranging and conducting the mediation process;
3) Arranging and conducting post-mediation diversion activities;
B. Monitoring and follow-up;
1) Undertaking rehabilitation and reintegration programmes/activities;
2) Prevention of offending and re-offending; and (8) Capacity-building of stakeholders and
other actors.

Lesson 4
PNP Manual in Handling Cases of Children at Risk
and Children in Conflict with the Law (2016)

Who are at risk of becoming a Child in Conflict with the Law

(CICL)? CAR (children at risk) refers to children who are vulnerable to
and at risk of behaving in a way that can harm themselves or others, or vulnerable and at risk of
being pushed and exploited to come into conflict with the law because of personal, family and
social circumstances, such as, but not limited to, the following:
a. being abused by any person through sexual, physical, https://study.com/articles/
psychological, mental, economic or any other means, and the parents or How_to_Become_a_Juvenile_Detention_Officer_Career
_Roadmap.html
guardians refuse, are unwilling, or unable to provide protection for the
child;
b. being exploited sexually or economically;
 c. being abandoned or neglected, and after diligent search and inquiry, the parents or
guardians cannot be found;
d. coming from a dysfunctional or broken family or being without a parent or guardian;
e. being out of school;
f. being a street child;
g. being a member of a gang;
h. living in a community with a high level of criminality or drug abuse; and
i. living in situations of armed conflict.

Violation of ordinances. CAR also includes those children who violate the ordinances enacted
by local governments, concerning juvenile status offenses enumerated in Section 57-A of R.A.
No. 9344 as amended by R.A. No. 10630, such as, but not limited to:
a. curfew violations
b. truancy
c. parental disobedience
d. anti-smoking and anti-drinking laws, as well as those concerning light offenses and
misdemeanors against public order or safety such as, but not limited to:
1) disorderly conduct
2) public scandal
3) harassment
4) drunkenness
5) public intoxication
6) criminal nuisance
7) vandalism
8) gambling
9) mendicancy
10) littering
11) public urination, and
12) trespassing

Decriminalized acts when committed by Children. CAR also includes those who commit any
of the following:
a. Prostitution (Article 202 of the Revised Penal Code);
b. Mendicancy (Presidential Decree No. 1563); and
c. Sniffing of rugby (Presidential Decree No. 1619).

Protocol in Rescuing Children who are at Risk (CAR) of Becoming CICL

The WCPD Officer shall immediately meet with the social worker to plan the rescue and
determine the action necessary to protect the child. The planning and conduct of rescue
operations shall proceed as follows:
a. The WCPD Officer shall immediately verify the matter and gather more information.
b. The WCPD Officer shall contact the DSWD/LSWDO, other units of the PNP (if necessary)
and the concerned barangay officials to map out the rescue operations, identify tasks and
responsibilities, and identify support agencies or services.
c. Confidential information may be shared only with those directly involved in the planning and
conduct of the rescue operation.
d. The WCPD Officer shall lead the rescue operation. The social worker, at a safe distance,
shall take custody of the child victim.
Depending on the nature of the case, the composition of the rescue team shall vary. The
composite team shall, however, properly observe role delineation with the police as lead agency
in rescuing the child and apprehending alleged perpetrators if any.

The police, however, may immediately rescue a child at risk if coordinating the rescue
operations with the nearest available social worker would compromise the safety of the child.

As soon as the child is rescued, the child shall be endorsed to the LSWDO and the rescue
operations entered in the Pink Blotter or Mandatory Registry.

Rescuing CAR who Violate Ordinance or Commit Decriminalized Acts

a. Give the child a friendly advice or “payo” or a simple warning not to repeat the act/s she/he
has committed;
b. Immediately notify the parents or guardians for their proper intervention in the treatment of
the child;
c. Immediately transfer the physical custody of the child directly to the barangay of residence
for proper disposition;
d. If the child is a resident of another municipality or city, turnover the CAR to the LSWDO of
the place where the offense was committed.
e. Whenever a case is referred to the Barangay or the LSWDO and documents need to be
submitted, the WCPD Officer shall submit the records of the case in a sealed envelope with the
“CAR CASE” written conspicuously on the upper right-hand corner of the face of the envelope
with appropriate receipts for the documents.

In all cases, the responding officer shall take down the facts of the case in his/her tickler and
shall report the incident to the WCPD Officer who shall enter the incident in the Pink Blotter or
Mandatory Registry

INITIAL CONTACT
Initial contact with the child refers to the apprehension or taking into custody of a child in conflict
with the law by police officers or private citizens. It includes apprehension with or without a
warrant.

Police officers shall take note that the physical custody of the child shall be turned over to the
appropriate persons or agencies, within eight hours after initial contact.

Protection upon Initial Contact

The CICL shall enjoy the rights laid down in R.A. No. 9344 as amended and its Implementing
Rules and Regulations, and shall enjoy the protection of other laws, whenever applicable from
the first time that the child comes in contact with the Juvenile Justice and Welfare System.

The right to privacy of a child in conflict with the law shall be respected at all stages of the
proceedings. As such, all records and proceedings involving children in conflict with the law,
from initial contact until the final disposition of the case, shall be considered privileged and
confidential.

Who may Conduct Initial Contact

First responders, beat patrol officers, WCPD and other responding police officers who shall
have initial contact with a CICL is covered under this Manual.
General Rules in Conducting Initial Contact
Procedures in apprehending a CICL. The following procedures shall be observed in
conducting initial contact:
a. The apprehending officer shall identify himself/herself to the child and shall introduce
herself/himself as kuya or ate to the child and show his her proper identification card as a police
officer.
b. If the apprehending officer is wearing a vest or a jacket while in uniform, she/he shall show
her/his nameplate and/or badge to the child.
c. If the apprehending officer is in civilian clothes, he/she shall show his/her identification card.
d. The apprehending officer shall conduct the search of the child in a friendly, non-degrading
and gender-sensitive manner. A female child shall only be searched by a female police officer.

Procedure for Taking Child Into Custody (excerpt from R.A. 9344 as amended)
From the moment the child is taken into custody, the law enforcement officer shall
faithfully observe the following procedures:
(1) Properly identify oneself and present proper identification to the child.
(2) Immediately notify the child’s parents or guardians, the Local Social Welfare and
Development Officer (LSWDO), and the Public Attorney’s Office (PAO) of the child’s
apprehension. The notification shall be made not later than eight (8) hours after apprehension.
(3) Explain to the child, in simple language and in a language or dialect, which the child can
understand:
a. The reason for placing the child under custody;
b. The offense allegedly committed; and
c. The child’s constitutional rights and the child’s rights under Republic Act 7438 or An Act
Defining Certain Rights of Person Arrested, Detained or Under Custodial Investigation as well
as the Duties of the Arresting, Detaining and Investigating Officers, and Providing Penalties for
Violations Thereof [R.A. 7438].

If the child cannot understand the language or local dialect or suffers from disability, an
interpreter or a mental health professional shall be provided.

(4) Determine the age of the child, in accordance with the guidelines provided in Rule 37b
herein.
(5) Take the child immediately to the proper medical or health officer for a thorough physical and
mental examination. Whenever medical treatment is required, steps shall be immediately
undertaken to provide the same.
(6) Immediately but not later than eight (8) hours after apprehension, turn over the custody of
the child to the Local Social Welfare and Development Office or other accredited NGOs.
However, in cases where the child is fifteen (15) years old or below, the law enforcement officer
shall immediately release the child to the custody of the child’s parents or guardian, or in their
absence, the child’s nearest relative, upon assessment and recommendation of the Local Social
Welfare Development Officer, in accordance with Rule 36.a herein.

The above procedure must be followed, in strict observance of the prohibitions provided in
Section 21 of the Act and in RULE 32 herein, while the child is in the custody of a law
enforcement officer.

A child in conflict with the law shall only be searched by a law enforcement officer of the same
gender, as prescribed in Section 21 of the Act.
It is the duty of the enforcement officer to refer the child to the LSWDO for the determination of
discernment as provided under Rule 38.

Prohibited Acts during Initial Contact to CICL

Use of instruments of force or restraint. The apprehending officer shall avoid displaying
and/or using instruments of force or restraint (including baton, handcuffs, guns, sticks, etc)
during initial contact. As provided under Sec. 21 of R.A. 9344 as amended, a police officer may
only use an instrument of force or restraint when absolutely necessary and only after all other
methods of control have been exhausted and have failed.

Whenever handcuffing is necessary, the apprehending officer shall ensure that the child is not
exposed to the public to avoid embarrassment and humiliation. The apprehending officer may
cover the instruments of restraint used.

If force, handcuffs or other instruments of restraint are employed on the child, the police officer
shall record such fact, the reason for using them, and report it to the WCPD Officer in the
station. These facts shall be recorded in the Pink Blotter or the Mandatory Registry

Use of unnecessary violence and force against the child is absolutely prohibited without
exception. Using unnecessary violence and force is a criminal offense.

A child in conflict with the law who is in custody shall not be searched by a police officer of the
opposite gender.

All duty-bearers shall not use vulgar or profane words against, or in the presence of the CICL.

Police officers shall not sexually harass or abuse, or make sexual advances on the CICL.
Criminal and administrative charges shall be filed against police officers who perpetrate sexual
offenses upon a CICL.

Police officers shall not use torture or inflict cruel punishment and other forms of violence and
abuse on children.

Conducting Initial Contact in an Educational Institution

If the initial contact shall be conducted within the premises of an educational institution, the
responding police officer shall always coordinate with the head of the educational institution and
with its Child Protection Committee if existing, before conducting the initial contact.

In addition, the following procedures shall be observed:

a. The responding police officer shall go directly to the office of the head of the educational
institution in civilian clothes.
b. No guns shall be brought inside the premises of the educational institution.
c. The responding officer shall accomplish and sign all the school documents required for the
turnover of the child.

Upon completion of the required documents for the turnover, the responding officer shall
discreetly escort the child with his/her parents or guardians out of the school to go to the police
station.

Duties of the Police Officers upon Receiving the CICL at the Police Station
The WCPD or any police officer who received the physical custody of the child shall:
 a. Ensure that the child is placed in a safe and comfortable place, providing an area in the
police station where the child may temporarily stay without experiencing any form of threat, fear
or anxiety.
b. Ensure that the privacy of the child and the confidentiality of the case is respected.
c. Assess and address the immediate needs of the child;
d. If the child is hungry, thirsty or otherwise tired, the police officer shall try to the best of
his/her ability to address the basic needs of the child;
e. Be sensitive to the needs of the child especially those which the child may not
communicate.
f. If the child cannot understand the language or local dialect or suffers from disability,
immediately get an interpreter or refer the child to an appropriate agency or person such as a
social worker, a mental health professional, the CSWDO, the City Health Office etc.
g. If the child is injured or is suffering from any condition that may need immediate action, the
police officer shall refer the child to the appropriate office or agency, otherwise the police officer
shall as much as possible alleviate the suffering of the child.

Prohibited Acts while a Child is in the Police Station

1. use of vulgar or profane words against or in the presence of the CICL.
2. CICL shall never be detained in a polic station lock-up or referred to jails managed by
BJMP or any law enforcement agency, provincial jails and other similar facilities.

Pending turnover of the physical custody of the child to the LSWDO or the other appropriate
persons or authorities, the police officer shall ensure that the child shall be temporarily secured
in an area separate from that of the opposite sex and adult offenders, and shall not be placed
inside the detention cell or jail.

If the acts mentioned above were committed while the child is in the police station, the police
officer concerned shall report the incident immediately to the WCPD. The WCPD Officer shall
record these facts in the Pink Blotter or in the Mandatory Registry, conduct an investigation
regarding the matter and file the appropriate criminal and administrative cases.

INITIAL INVESTIGATION
The initial investigation is the stage after initial contact, when police officers gather relevant
evidence regarding the case and about the CICL. The conduct of the initial investigation shall be
guided by the principle of the best interest of the child and consideration for the concerns and
needs of the victim. It is the duty of the law enforcement officer to refer the child to the LSWDO
for the determination of discernment.

Processing of the CICL

In all cases, the processing of the CICL shall be conducted by the WCPD. The processing of the
child shall include the following procedures:
a. Notifying the parents/guardians of the CICL within eight hours from initial contact;
b. Notifying the Local Social Welfare and Development Office and the PAO within eight hours
from initial contact;
c. Recording the personal circumstances of the child and filling out the intake form;
d. Determining the age of the child;
e. Gathering evidence if the child is dependent, abandoned, neglected and/or abused; and
f. Taking the fingerprint and the photograph of the child.

The processing of the CICL shall be done within eight hours from the time of the apprehension
of the CICL. In all cases, the physical custody of the CICL shall be turned-over to the LSWDO
within eight hours even though the initial investigation is not yet terminated. The temporary
physical custody of the child, pending turn-over of custody to the LSWDO, may also be given to
an NGO that is licensed and accredited by the DSWD, a faith-based organization, a foster
parent, or a member of the BCPC who is selected based on the criteria set by the DILG.

Gathering evidence if the child is DANA. The WCPD Officer processing the child shall to the
best of his/her abilities gather evidence that may prove that the child is:
Dependent – the child is without a parent, guardian or custodian; or one whose parents,
guardian or other custodian for good cause desires to be relieved of the child’s care and
custody; and is dependent upon the public for support, as provided in Art. 141(1), Title VIII of
P.D. 603.
Abandoned – the child has no proper parental care or guardianship or when the child’s parents
or guardians have deserted the child for a period of at least six (6) continuous months, as
provided in Art. 141(2), Title VIII of P.D. 603.
Neglected –the child’s basic needs have been deliberately unattended or inadequately
provided, as provided in Art. 141(3) of P.D. 603.
Abused –upon the evaluation of the LSWDO, the child is determined to be maltreated, whether
habitual or not, as defined in Section 3(b) of Republic Act No. 7610, or the “Special Protection of
Children Against Abuse, Exploitation and Discrimination Act” [“R.A. 7610”].
The WCPD Officer shall record the findings in the Pink Blotter or Mandatory Registry and shall
turn over the physical custody of the child and refer the case according to the rules and
procedures