Address at the Launch of Bench Book on Children by the Hon. Acting Chief Justice Kamal Kumar 31 March 2021 at the GPH Suva

Hon. Judges and Master of the High Court

H.E. Mr. Sheldon Yett, UNICEF Representative

H.E. Mr. Sujiro Seam, Head of Delegation, European Union

Their Excellencies, the High Commissioners and Ambassadors

Ms Jennifer Poole, Permanent Secretary for Women, Children &

Poverty Alleviation

Chief Registrar

Resident Magistrates

Mr. Rashmi Aslam, Deputy Commissioner, FICAC

UNICEF Pacific and Fiji Representatives

Mr. Shahin Ali, Director Legal Aid Commission

Mr. Apakuki Qura, Deputy Commissioner of Corrections

Mr. Wylie Clarke, President, Fiji Law Society

Mr. Jesh Kumar, Project Planning Officer, Office of the Prime Minister

Ms Miliana Tarai, Legal Services Manager, Fiji Women’s Crisis Centre

Ms Meresiana Krishna, Child Rights Officer, Save the Children Fiji

Members of the Secretariat and IT Section

 

 

Good afternoon,

I am grateful and delighted to welcome you to the Launch of Bench Book on Children.

Thank you for taking out your time to be part of the Launch.

Our Constitution and legislation such as Criminal Procedure Act 2009, Juvenile Act 1973 and Family Law Act 2003, makes provisions to ensure that when a child is brought before the Court whether as a victim, witness or accused he/she is given special protection and treatment.

In particular section 41(2) and 15(9) of our Constitution provide as follows:-

S.41(2):  “The best interest of a child are the primary consideration in every matter concerning the child.”

This is obviously a very broad provision and covers all matters that concerns a child, whether it be criminal case or family matter.

S.15(9) provides that:

“If a child is called as a witness in criminal proceedings, arrangements for the taking of the child’s evidence must have due regard to the child’s age.”

In a criminal case, these rights will have to be balanced against an accused right to fair trial.

Any court process and in particular criminal cases can be quite intimidating to any person.  It is therefore imperative that children are given adequate protection to ensure that they do not feel intimidated or vulnerable when giving evidence or defending themselves.

Honourable Judges and Magistrates in our Courts are very mindful of the fact that children need to be treated differently.  Some of the practices already developed by Courts and prescribed in s.296 of Criminal Procedure Act 2009 are as follows:-

• Wigs and Gowns are dispensed with;
• Court is closed to public;
• Seating is re-arranged – prosecution/Judge/Magistrate sit on same level as parties/witnesses;
• Children are to address Court while sitting;
• Evidence are taken via CCTV or from behind a screen;
• In Juvenile Court cases – parent/guardian of child is permitted to sit next to child;
• In Family matters child’s answer are taken in chambers;
• If there is a need a child representative is appointed by Court.

At this point I wish to acknowledge and thank UNICEF for all the assistance provided to Judicial Department todate to ensure that we have appropriate facilities to deal with children and not to be make them fearful, intimidated or vulnerable when they appear in Court and for sponsoring the publication of the Bench Book on Children.

I would also like to acknowledge and thank the Committee led by Ms Shelly Casey UNICEF Consultant/Technical Expert on Child Justice, Honourable Judges of High Court, Chief Registrar, Chief Magistrate, Resident Magistrates and Registrars of Family Court for your contribution and all those who contributed in any form or other, towards the publication of the Bench Book.

The publication of Bench Book on Children will definitely assist the Judges and Magistrates in conducting proceedings involving children.  Judiciary is quite mindful of the fact that everyone irrespective of their status in society has a right to access to justice.  The main purpose of publishing the Bench Book is to ensure the safety, well-being of children which is paramount in all respect.

It must be borne in mind that a fair, transparent and impartial justice system is cornerstone of a democratic society.  As such we must ensure that all parties including children are treated fairly, irrespective of sex, religion, ethnicity, culture, or similar reason.

UN Special Rapporteur on his Report on the independence of judges and law (A/HRC/29/26):

 

“An administration of justice that fails children ultimately also fails society.  The Special Rapporteur is convinced that investing in child-sensitive justice is indispensable to strengthening the rule of law and the enjoyment of human rights by all, as well as to building flourishing democratic societies.”

Page 12 of Bench Book

I have no hesitation in fully endorsing his view.

Bench Book on Children has four parts being Part A to Part D.  Part A is introductory and highlights various stages of child development and how their development affect their understanding of life and ability to communicate.

Part B sets out guidelines when dealing with child complaints and witness in criminal proceedings.  It must be understood that children depending on their age or personal circumstances can be easily swayed from telling the truth by adults to adult’s advantage.

The point highlighted in this Part will no doubt assist children and the Courts when evidence is given by children and will ensure that they tell the truth without fear, or intimidation.

Part C sets out guidelines when dealing with “children in conflict with law.” In other words when dealing with cases where children are accused of committing crime.

 

As I have said before our Legislation Rules and Regulations have provisions to ensure that well-being, safety of children are taken into consideration by Courts.  In particular our Juvenile Act 1973 which provides following measures:-

 

(i)     Proceedings are to be held in closed Court. s.9

(ii)    Name, addresses, school or any particulars that will reveal identity of Juvenile is not to be published unless dispensed by Court or Minister in the interest of justice. s.12

(iii)   Juvenile cases are not to be called with adult cases. s.17

(iv)    Words “Conviction” and “Sentence is not to be used. s.20

(v)     Police Officers are not to take fingerprints or photographs of child except on Order of a Magistrate. s.25

 

Part D sets out guidelines for dealing with children in Family matters.

Our Family Law Act 2003 in no uncertain term provide that in dealing with issues involving children whether it be child maintenance and/or residence/contact application, child’s interest is the paramount consideration.  Hence guideline set in the Bench Book will assist the Courts in obtaining evidence from children, determining their view and determining what is in their best interest.

I am sure you will agree with me that sound communication skill is what we must have in every aspect of our lives.  If I had to describe the Bench Book in one sentence, then I would say this.

Bench Book on Children sets out very useful guidelines as to how Judges/Magistrates/Lawyers are to communicate with children at different stages of their life from Infancy to Adolescence to ensure children’s best interest, well-being and safety is protected at all times which is the paramount consideration.

Before I conclude, I must say two things:-

Firstly: What is “in the best interest of child” is a subjective test and will depend on the circumstances placed before the Court.

Secondly: Bench Book is a guide only meaning the guidelines stated in it are not “cast on stone.”  Judges/Magistrates dealing with matters involving children can add to the guideline or vary the guideline which in their opinion best suits the circumstances before the Court at any given time.

 

All those who has in any way played a role in seeing the publication of the Bench Book, thank you so much.

 

Once again I thank you all for being part of the Launch.  To representatives from UNICEF Ms Bridgette Sonnois, Ms Salote Kaimacuata and Ms Ana Janet Sunga, I look forward to your support as we move to improve our services to provide access to justice to members of the public.  Thank you and Vinaka Vakalevu.

Wish you all a pleasant and blessed afternoon.

Kamal Kumar

Acting Chief Justice