JFJ wants changes to child diversion law

Calling for amendments to the Child Diversion Act, Jamaicans for Justice (JFJ) is recommending a two-tiered approach to the child diversion programme to deal with low-risk children as opposed to those involved in more serious behavioural conduct.

In a submission to the joint select committee reviewing the Child Diversion Act, 2018, JFJ said the current legal framework operates as a single-level diversion programme.

It says children who are referred to diversion are subjected to similar interventions regardless of the seriousness of the alleged conduct, the circumstances of the incident or the child’s individual risk and developmental profile.

This produces a structural mismatch between behaviour and response, said JFJ, arguing that minor behavioural incidents, adolescent peer or relationship conflicts, and more serious but still divertible offences are managed within the same programme architecture.

The human-rights organisation says this could result in low-risk children receiving too much intervention, while higher-risk children do not receive sufficiently structured supervision.

In this regard, JFJ is pushing for a structured, tiered diversion framework consisting of two intervention levels.

“The purpose of the framework would be to ensure that the response to a child in conflict with the law is proportionate to both the seriousness of the alleged conduct and the child’s assessed risk and developmental needs,” reads a section of JFJ’s submission.

Drawing on the South African Child Justice Act, the human-rights body says the legislation recognises two diversion levels.

Level-one diversion is generally applied to minor-offending and low-risk children. It consists of community-based and restorative measures, such as counselling, apologies, behavioural guidance, school-attendance orders, and restorative justice processes involving the child, the victim, and the family.

On the other hand, level-two diversion applies to more serious or repeated behaviour and requires structured supervision. Measures may include intensive mentoring, therapeutic programmes, victim-offender mediation, family group conferences, and sustained monitoring by an authorised service provider. The objective is rehabilitation and accountability, while still avoiding a criminal conviction.

Procedural difficulty

The Child Diversion Act permits diversion for certain specified offences, including sexual intercourse with a person under 16 years. However, JFJ noted that grievous sexual assault is not included in the First Schedule.

The implication of this, according to JFJ, is that it creates a procedural difficulty. It says some cases classified as grievous sexual assault involving children arise from close-in-age peer conduct. Because the offence is not scheduled, said JFJ, a constable cannot make an early referral, and the child is processed through the formal court system before diversion is considered. This defeats the purpose of diversion as an alternative to criminal proceedings, the human-rights group explains.

JFJ wants lawmakers to amend the First Schedule of the Child Diversion Act to expand the offences for which police have discretion to divert.

Another proposal for consideration by lawmakers is for Parliament to amend the law to allow prosecutors an opportunity to refer matters to child diversion before they are formally presented to the court.

The Child Diversion Act currently permits prosecutors to recommend diversion to the court, but does not empower them to initiate the referral independently before a plea is made. As a result, JFJ says children frequently enter formal proceedings before intervention is considered, contrary to the preventive purpose of diversion.

JFJ’s presentation was led by its executive director, Mikel Jackson, who also suggested that the Child Diversion Act should be amended to introduce a “young persons” provision, extending access to diversion for individuals up to age 21 where the alleged offence was committed before the age of 18.

She indicated that diversion eligibility should be determined primarily by age at the time of the offence and not age at the time of the court proceedings.

Justice Minister Delroy Chuck, who chairs the joint select committee, said matters involving children which are before the courts should be dealt with expeditiously and not extended for months or years.

Reiterating an earlier proposal, JFJ’s head called for the decriminalisation of consensual sexual activity between minors.

She indicated that some 218 cases reportedly referred by the police to the Child Diversion Programme between 2020 and 2024 are primarily sexual offences, excluding rape, involving close-in-age youngsters under the age of 16 years.

She said data obtained from the police force showed that referral for diversion was made primarily by the Centre for Investigation of Sexual Offences and Child Abuse (CISOCA).

According to the human-rights body, many of these cases involved close-in-age adolescents rather than exploitative behaviour. This produces a legal outcome where normal adolescent relationships lead to criminal charges and subsequent diversion, JFJ added.

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