LL.D. / Please refer to full text to view abstract

This thesis covers the topic of juvenile diversion with respect to keeping juveniles from progressing further into the justice system as well as keeping them out of prison. It deals with a number of areas. The first is diversion before an offence has been committed - prevention. Here a number of recommendations are made with respect to education of the child and the community in order to make prevention a priority when new diversion programmes are considered and introduced. The second area is that of diversion after the offence has taken place. This deals with diversion by the police at the moment of apprehension and recommends the introduction of cautions as a diversionary measure. The third aspect that is considered is diversion after the juvenile has been arrested and/or charged. The establishment of Reception and Assessment Centres and the setting up of Family Group Conferences are especially highlighted. The detention of the child until his/her trial is also investigated and it is concluded that this is an unnecessary measure except in extreme circumstances. The progression of the child's case to court is the fifth area considered. Here, recommendations are made as to the necessity for the proper training of court personnel and the need for the introduction of court imposed diversionary programmes before sentencing. With respect to diversion after the child has been found guilty, a number of suggestions are made as to the introduction of new sentencing options and new or improved institutions. Finally, recent reforms are discussed. The conclusion reached is that juveniles should not be imprisoned except in the most extreme cases, and that diversion programmes should be instituted as soon as possible as the basis of SouthAfrica's juvenile justice system. It is deemed essential that diversion begins with prevention and continues until sentencing is completed, and that all children are diverted unless this is not possible.

This dissertation addresses the developments of child justice in Botswana. The first ever child justice that was established is discussed with the aim to understand the influence it had on Botswana with regard to the nature of the proceedings and the founding principles of child justice and its application in the courts. International Conventions that have a bearing on the rights of children in Botswana, such as the Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, the United Nations Guidelines for the Prevention of Juvenile Delinquency and the African Charter on the Rights and Welfare of the Child are discussed. The measures that are currently in place for the protection of children who are in conflict with the law are examined with particular emphasis on those children that are arrested and detained. A comparison is drawn between the Children’s Act CAP [28:04] OF 1981, the Children’s Act 8 of 2009 and the South African Child Justice Act 75 of 2008 and the differences between the systems are highlighted. The provisions of the 2009 Act pertaining to children in conflict with the law are discussed in depth and shortfalls of the 2009 Children’s Act are identified. Diversion, as a form of correctional action, is discussed in light of international conventions. The provisions regarding the diversion of child offenders in the Child Justice Act are interrogated. Trial procedures under the 2009 Children’s Act are discussed and compared to those in South Africa including measures in place for the sentencing child offenders in both Botswana and South Africa. After an analysis of the international conventions, legislation and case law, the conclusion is reached that there is a commitment in Botswana towards the protectionand realization of children’s rights especially those who are in conflict with the law. It is recommended in the conclusions that Botswana import some provisions of the Child Justice Act into domestic legislation in order to comprehensively address the plight of children in trouble with the law so as to strive towards maximum compliance with conventions that Botswana has signed.

This thesis attempts to explain changes in juvenile court reasoning from ‘personal’ to ‘social’ goals of justice. The introduction of social reasoning into juvenile justice has resulted in legal reform practices which circumscribe the domain of decentralized community youth services, increase the dependency and surveillance of deviant youth, result in harsher measures of punishment, and generally widen the network of social control through the law. The shift from the treatment intervention focus of the Juvenile Delinquents Act to the deterrence and punishment focus of the Young Offenders Act is maintained by incarcerations and a ‘downward’ sliding tariff of dispositions. The new social control administration formally enters the previously informal social control networks of family, community, and peer relations. Social change options through the law are increasingly centralized in the courts (where youth are concerned) at the expense of the law's potential for mediating decentralized collective change. The new form of social reasoning by which law reform occurs is explicated in order to critique its application for the current legislation and to explore possible use of collective change processes through law. I describe ‘social’ reasoning as a form of interpretive syllogism with the goal of social good satisfied through individual justice, in contrast to ‘personal’ reasoning which involves the individual's best interests as a good in itself. Social reasoning, as currently applied in the YOA, utilizes neoclassical rationality and sociological theories that relate actions to a presumed balance of diverse and competing social interests. My own understanding of the impact of Court interpretations of the YOA are based on in-depth interviews with 10 Youth Court judges in the Vancouver area. I analyze the legislative construction and judicial implementation of the YOA as reflecting a political strategy linked to and grounded in the knowledge relations of experts. Strategies for discipline are consonant with the rationalized practices of social science knowledge, located both in science (the medical model) and in law (sociological jurisprudence). The research findings suggest that ‘social’ reasoning, which is narrowly centered on legal problems arising from the behaviour of juveniles, pursues forms of crime control directly related to the needs of capital. The YOA is thus viewed as a new discourse (based on power and knowledge relationships) that aims to widen state-social control. Given the relatively narrow jurisprudential horizons of both the legislators who framed the YOA and the judges who apply it, the potential of law for effecting social change is curtailed. I conclude my analysis by suggesting a culturally reflexive approach in which legal reasoning, by a process of reconstructing the interpretive syllogism of law to include commonsense practical reasoning, could become more conducive to community change. / Arts, Faculty of / Sociology, Department of / Graduate

We describe the mental health referral rate among youth in a correction facility, examine how sociodemographic and criminal history characteristics relate to referral, and explore how these variables and diagnostic class differ by referral source. Data were abstracted from case records. The referral rate was low (6%). Non-Latino youth, repeat offenders, and violent offenders were more likely to be referred compared to all detained youth. Referral source also varied by violent offense history and diagnosis type. Future studies examining access to mental health services should take into account a detained youth 's sociodemographic, criminal history, and clinical characteristics.

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