Methods of dealing with children in conflict with the law.

Brief facts

The accused, a child held in a remand home, was facing a murder charge. Her case had been scheduled for hearing but there were concerns raised by the children officer of the remand home that the child was five (5) months pregnant and the court was not aware. The greatest concern was that a remand home was not conducive for the holding of a pregnant child, and in the event that she gave birth, it would not be conducive for a child mother and her baby.

The accused was charged with the murder of her child. In her defence it was contended that the accused was a survivor of an exceptionally difficult upbringing, having been raised by her grandparents due to the parents neglect, and having being married off as a child. The accused was carrying her second pregnancy, all at the tender age of 17 years. Her husband sent her away when her child was 1 year and 2 months old. She went to her grandmothers, only for the grandmother to find out she was by then 3 months pregnant. The grandmother was not ready to take care of three extra mouths and told her to go back to her husband who had taken in a new wife. It was alleged that she decided to kill her child and then kill herself instead of going back. The prosecution had tabled a plea agreement proposal in which if accepted would convict the accused to the lesser charge of manslaughter. The court was also tasked with deciding on the best way to proceed with the case.

Issues

1. What was the procedure to be followed by authorities in the criminal justice system in the arrest and presentation of a charge to a child?
2. Whether the police erred in arresting a child charged with the murder of her child without following up to charge the father of the murdered child for defilement.
3. What should courts take into consideration in determining the best way to deal with a child in conflict with the law?

Held

1. The court was guided to always act in the best interests of the child. Detention of a child ought to be the last resort. There was a mistake on the court's part. The Children Act on the categories of children in need of care and protection included under section 144(r), a child who was pregnant, and under section 144(bb) a child who was in conflict with the law. The court of the view that the arrested child was not only in conflict with the law, but was also in need of care and protection.
2. The mental assessment report, which indicated that she was 17 years old, 1^st born of 8 siblings, separated from her husband with whom they had one child (the deceased) and was now pregnant with the 2^nd child. There was history of early childhood trauma as she had been married from the age of 15 years old. The psychiatrist formed the opinion that she was mentally fit to stand trial, but, in addition, she was psychologically traumatized and a victim of Gender Based Violence. He recommended that she required more psycho-social support and rescue from the situation she was in.
3. There was urgent need for the creation of awareness amongst the child justice agencies of the new requirements of the law put there to enhance child protection for those who entered the criminal justice system. Section 218 of the Children Act required that a police officer who arrested a child ought to not only inform the parent/guardian, but also the Secretary Children Services or an authorized officer within 24 hours. Upon receipt of that information the children officer was to carry out an assessment and submit that report to the police officer. Of importance was what the report should contain; information on the the socio-economic and personal circumstances and the needs of the child with a view to safeguarding the welfare of the child. That had not been done in the instant case.
4. The police ought to have opened a protection and care file even as the matter was pending investigations. There was a gap in time, which was not explained, from the date the victim child died to the date the subject was presented in court. The protection and care file would have enabled the director of children services to begin other investigations. The director of criminal investigations ought to have been involved because of the child marriage issue, which was combined with defilement.
5. Despite being aware that the child was a victim of early marriage and defilement the police did nothing to follow up on that, and ODPP did not flag the two issues for follow up, everyone was more concerned about the killing of the young child without following up on the why, yet the arrested child was pregnant with another child.
6. When she entered into a plea agreement the director of children services was initially of the view that that was purely a matter for protect and care file as it involved a child in conflict with the law. In view of section 239 of the Children Act, that was no longer the position. Kenyas children law recognized the reality that more often than not the child offender was first a child in need of care and protection whose welfare ought to be taken into consideration even as the criminal charges were preferred against that child. The child offender was a child in need of care and protection, who, should the circumstances dictate, would return to the hands of the Secretary Children Services who had a role in dealing with the child who was in conflict with the law, in view of section 239 (1) (d) (e) (h)(i), (l) and (m) of the Children Act.  The provision provided that where a child was tried for an offence, and the court was satisfied as to their guilt, the court could commit the offender to the care of a fit person; if the child was between twelve years and fifteen years of age, order that the child be sent to a rehabilitation institution suitable to the childs needs and circumstances; place the child under the care of a qualified counsellor or psychologist; order that the child be placed in an educational institution or vocational training programme; make a restorative justice order; or make a supervision order.
7. The Directorate of Children Services had a major role in the rescue, rehabilitation and reintegration of the child in conflict with the law. Nevertheless, they had filed the Children Officers Report, where they had recommended that she be committed to Kisumu Rescue Centre pending the hearing of the case. An institution that would have both rehabilitative and reintegration programs, while at the same taking care of her pregnancy and new born when the time arose would be ideal. The Probation Officers Report recommended that the subject be placed on probation for three years at Siaya Girls Probation Hostel. The Hostel was the appropriate institution. Section 239 of the Children Act 2022 provided that the court could make one or a combination of the methods set out there with respect to the child found guilty of an offence.