Acting in the best interests of children with psychiatric disorders who conflict with the law: A critical analysis of South African legislation

Abstract

The significant prevalence of psychiatric disorders in child offenders requires the justice system to provide direction in the treatment of these children. This submission considers whether the Children’s Act 38 of 2005, the Child Justice Act 78 of 2008, the Criminal Procedure Act 51 of 1977 and the child justice procedures uphold the best interests of child offenders with a mental illness or defects by juxtaposing South African legislation and child justice procedures with the best interests standard principle. The authors conclude that current legislation and legal procedures are not in the best interests of children with psychiatric disorders. Children with mental illness or defects are not adequately protected and they cannot participate equally in justice delivery processes. Furthermore, adequate consideration is not given to the affect of mental disorders or defects in decisions during child justice proceedings. It is recommended that the Child Justice Act be amended to include a section in which the rights of children with psychiatric disorders are protected and measures be put in place to address their psychosocial and developmental needs. Children with psychiatric disorders who are in conflict with the law should be classified as children in need of care and protection to break the causal nexus between psychiatric disorders and delinquency.