Briefing Paper Series: Innovations, Lessons and Good Practices. Data Management for Effective Implementation of the Juvenile Justice Act

Transcription

1 8 Briefing Paper Series: Innovations, Lessons and Good Practices Data Management for Effective Implementation of the Juvenile Justice Act

2 The United Nations Children's Fund 73, Lodi Estate New Delhi India Website: Cover Photo: UNICEF/India/Prashanth Vishwanathan The United Nations Children's Fund (UNICEF), 2011

3 Briefing Paper Series: Innovations, Lessons and Good Practices Data Management for Effective Implementation of the Juvenile Justice Act

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5 Briefing Paper Series Innovations, Lessons and Good Practices What is the Briefing Paper Series? These Briefing Papers document a collection of initiatives, funded through UNICEF and implemented jointly with the Union and State Governments of India and other partners over the past five years. It covers a range of pilots and more advanced interventions that have variously generated lessons, demonstrated potential or achieved verifiable results in the delivery of maternal health, child survival, education, environment, protection and gender equality. Each paper provides an overview of a practice: its context, purpose, strategy and key elements of implementation as well as, to varying extents the key results and costs involved. The papers go onto consider lessons and wider application of the initiative. The series aims to generate greater knowledge and support effective replication and scale up. This paper describes an initiative by Department of Women and Child Development in Odisha with support from UNICEF to strengthen data management system to ensure effective and quality implementation of the Juvenile Justice Act. The system promotes the use of common application and standardised formats by concerned agencies and department, thereby ensuring collection of necessary and comparative data. Central to the initiative has been the best interests of children who are in conflict with the law and in need of care and protection. Summary The Juvenile Justice (Care and Protection of Children) Act 2000 and Juvenile Justice (Care and Protection of Children) Amendment Act 2006 (referred to as JJA henceforth in the document)form the primary legal framework for juvenile justice in India. The law has been 1 enacted in India to conform to relevant international protocols. Deriving its philosophy from the Convention on the Rights of the Child (CRC) 1989, this was ratified by India in 1992 and legislation was enacted by the Indian parliament. The JJA is a central legislation that requires states to set up the necessary infrastructure and protocols to ensure that provisions are implemented and justice for children delivered quickly, so that their childhood and rights are not violated. It focuses on safeguarding the best interests of children who are in conflict/contact with the law as well as those in need of care and protection. One of the key principles advocated by the legislation is that the family holds the primary responsibility for providing care and protection of children, and that institutionalisation of a child should be considered as the last resort. There principles are essential in the context of social rehabilitation and reintegration of children in need of care and protection. Despite this, a considerable number of children, who are in conflict with the law or in need of care and 2 protection, are being placed under institutional care. 1 Convention on the Rights of the Child, 1989, UN Guidelines on the Prevention of Juvenile Delinquency: the Riyadh Guidelines (1990) and UN Minimum Rules for the Administration of Juvenile Justice: the Beijing Rules (1985) 2 JJA 2000 and its amendment 2006 define two target groups of children: (i) Children in conflict with law and (ii) children in need of Care and Protection. Broadly a child in need of care and protection means a child who is found without any home or settled place or abode and without any ostensible means of subsistence. Very elaborate detailing is provided for this under the Act. Children in conflict with the law means children who have allegedly committed an offence and not completed eighteenth year of age as on the date of commission of such offence 1

6 3 In India, institutions for children in conflict with the law host about 40,000 children. Most of 32,000 children apprehended and produced in the courts are reported to spend at least a week 4 to a year under institutional care. While the total number of children under institutional care (both short and long-term) is thought to be far higher, there is little reliable information available 5 on these children or the institutions. This holds true for the majority of states in the country. Research commissioned by the Ministry of Women and Child Development, the Government of 6 India has highlighted significant problems faced by children in institutional care, including overcrowding and abuse. The lack of reliable data significantly constrains the ability of the government to monitor child care institutions, ensure adherence to current legislation and make necessary improvements. 7 In this context UNICEF provided support to the Department of Women and Child Development (DWCD), the Government of Odisha to establish a data management system of child care institutions as an integral step towards strengthening implementation of the JJA. The data has been made readily available through a Management Information System (MIS) which is housed at the DWCD. The initiative is still at a nascent stage and the MIS is currently operational in only two of the thirty districts of the state. The MIS is being used to monitor case status by the members of the various JJ institutions so that they can ensure procedural compliance and appropriate placement of children. Availability of useful information has led to budget allocation from the state government to improve the government-run child care institutions. Also other proactive and positive policy-level actions have been taken towards protection of children and improving quality of care. While the immediate priority for Odisha is to make the MIS fully operational, this initiative has triggered positive interest from other states, providing ample scope for replication. Situation Analysis and Context Legal provisions for the care and protection of children The Convention on the Rights of the Child (CRC), 1989 defines a child as a person below 18 years of age in need of special care and protection. The CRC lays down four categories of basic rights of the child: the right to survival, the right to protection, the right to development and the right to participation. It also stresses the importance of family in a child s life. It urges the governments to provide protection and assistance to families in order to allow children a supportive, protecting and caring environment for growth and well-being. The CRC also makes clear the government s responsibility to promote reunification for estranged children and to provide appropriate alternative care for children who have lost the care of their parents. Placing a child in an institution is considered a last resort and, if resorted to, restricted to a minimum duration. 3 India Country Report on Violence against Children. June Quoted in Sub Group Report on Child Protection in the Eleventh Five Year Plan. Ministry of Women and Child Development (MWCD), Government of India. 4 Approximately 32,000 children in a year. Statistics quoted from National Crime Records Bureau in Sub Group Report on Child Protection in the Eleventh Five Year Plan. 5 NCPCR Sub Committee Report on Review of Operations Of Observation and Children s Homes. Nov 2007-March Study on Child Abuse: India Ministry of Women and Child Development, Government of India. 7 MWCD s department at the state level. 2

7 Briefing Paper Series Innovations, Lessons and Good Practices The UN Guidelines for the Alternative Care of Children were established to enhance the implementation of the CRC and other relevant provisions of international and regional human rights law regarding the protection and well-being of children who are in need of alternative 8 care, or who are at risk of being so. It focuses on two main aspects: Children should find themselves placed in alternative care unnecessarily; and Out-of-home care should be provided in appropriate conditions and respond to the child s rights, needs and best interests. In line with these provisions, non-institutional forms of child care have been affirmed and endorsed under domestic legislation in India as follows: 9 The National Commission for Protection of Child Rights (NCPCR) has recommended noninstitutional care options for children in conflict with the law and in need of care and protection. Identifying institutional care as the last resort for these children, the NCPCR has suggested that India should adopt more alternate care options including foster care, 10 kinship care and supervised and assisted living. The Juvenile Justice Act (Care and Protection of Children) 2000 and amendment 2006, was enacted by the Government of India to cover the developmental needs of children in conflict / contact with the law and children in need of care and protection. It further endorses and advocates that institutionalisation of children needs to be the last resort for children and, if resorted, to be for a minimal duration. Furthermore, the Government of India s Eleventh Five Year Plan proposed that the multiple schemes for protection of children be brought under one comprehensive child 11 protection programme. Thus the Integrated Child Protection Scheme (ICPS) was launched in 2009 for which Rs. 1,073 crores (approximately USD 233 million) was allocated. The ICPS focuses on children in need of care and protection, children in conflict and contact with the law, and others who are vulnerable. It also emphasises the importance of the family and promoted more family- and community-based alternatives for care. Echoing other provisions, institutionalisation is defined to be the last resort after all other options on non-institutional care have been explored. Data management system to capture reality The enactment of the JJA in India made it mandatory to establish one Child Welfare Committee (CWC) in each district. They have the authority with judicial power to dispose of cases for children in need of care and protection, provide for their basic needs and protect their rights. In addition, there is to be one Juvenile Justice Board (JJB) in each district to deal with matters relating to children in conflict and contact with law. 8 The UN Guidelines for the Alternative Care of Children (A/HRC/11/L.13 15). June NCPCR is a national governmental body with the mandate to ensure that all laws, policies, programmes, and administrative mechanisms are in consonance with the child rights perspective as enshrined in the Constitution of India and also the Convention on the Rights of the Child 10 Juvenile Justice: NCPCR for non-institutional care. Indian Express.com. July28, As per the National Crimes Records Bureau, the number of cases registered against children increased from 5972 in 2002 to 14,975 in

8 Despite the intent to seek non-institutional alternatives, institutional care often becomes the chosen option. The UN estimates that around eight million children around the world are in 12 institutional care. Institutions host about 40,000 children in conflict with the law in India. Around 32,000 children are apprehended and produced in the courts in a year, and most of them spend at least a week to a year under institutional care. Lack of adequate alternatives or support to families also adds to the adverse practices. In India, children are generally placed in one of the following institutional options: Shelter Homes: Drop-in centres or night shelters for children in need of care and protection Children s Homes: For the children in need of care and protection during the pendency of inquiry and subsequently for their care, treatment, education, training, development and rehabilitation. Observation Homes: For the temporary reception of juveniles in conflict with the law during the pendency of their inquiry Special Homes: For rehabilitation of juveniles in conflict with the law Special Shelters for children affected by HIV Apart from reports of National Crime Research Bureau, no other statistic is available on the number of children entering institutions in India. An attempt to register children s homes in the state of Karnataka received more than 1,500 license applications with data indicating around 60,000-75,000 children under their purview. Although it is mandatory to register child care institutions under the JJA, not all institutions comply. Also, there are institutions working under the purview of other Acts, such as the Orphanages and Charitable Trusts Acts. This makes it challenging to get a complete picture of existing institutions, their status and services. The lack of reliable and comprehensive data has made it extremely difficult to trace the case history of a child placed in the formal care system. The situation is worse in the case of non- 13 government institutions, which has also been corroborated through various studies. At the same time, research has found that children placed under institutional care are prone to 14 physical, emotional and sexual abuse and neglect. A study commissioned by the Ministry of Women and Child Development revealed that 56% of children in institutional care were subject 15 to physical abuse and 47% reported sexual abuse. The JJA lays down minimum standards on infrastructure and quality of care for each child care institution, but often these are not adhered to. Many issues such as overcrowding, lack of hygiene and dysfunctional infrastructure are 15 widespread. 12 World Report on Violence against Children, UNICEF, NCPCR Sub Committee Report on Review of Operations Of Observation and Children s Homes : Nov 2007-March 2008; Report on Child Abuse : India 2007 commissioned by the Ministry of Women and Child Development 14 Keeping Children out of Harmful Institutions: Why We Should Be Investing in Family-based Care. Save the Children Study on Child Abuse: India Ministry of Women and Child Development, Government of India. 4

9 Briefing Paper Series Innovations, Lessons and Good Practices More data was needed to capture the extent and prevalence of such issues in India. For authorities, it was also imperative to understand the situation on the ground, assess gaps and undertake measures to ensure that the minimum standards are met. This was also necessary to work towards deinstitutionalisation and rehabilitation of these children. Strategy and Implementation in Odisha context The genesis of the initiative The Department of Women and Children Development (DWCD) and a number of NGOs working on child protection in Odisha clearly recognised the need to improve the situation of children in formal care. Nevertheless, a dearth of information and a lack of a sound data management system presented serious limitations to making progress in the area. The launch of the Integrated Child Protection Scheme in 2009 created momentum for developing a knowledge base for child protection services. Building on this, the DWCD initiated a mapping of child care institutions in the state with the support of UNICEF in Step I: Mapping of child care institutions A detailed census survey covered 132 organisations registered under the JJA. The following information was collected: Number, type and capacity of the child care institutions Number and quality of staff available including their qualifications Infrastructural arrangements Total number of children including the reason for their entry, historical data relating to their stay at the institution, educational arrangements for children and Allocated budget per institution and per child. Step II: Making the data available in the public domain Once the data was collected, it was hosted on the website of the DWCD with dedicated server. The availability of this information has enabled the CWCs, JJBs and policy makers to access relevant data on each child care institution in each district of the state, including the numbers of children living there. At the same time, it has helped members of the CWC and JJB decide which institution a child could be placed while discharging their duties. The website also provides a link so that NGOs, especially those running child care institutions, have easy access to essential information. Step III: Assessment of government-run child care homes In , based on the request received from the DWCD, UNICEF commissioned to assess six government-run homes against the minimum standards laid down by the JJA. It was found that the infrastructure in the homes, namely living space per dormitory, bathrooms and toilets, provision of bedding, vocational training, health facilities, clothing and consumables for 16 children fell below the minimum standards. Based on the findings, concrete recommendations were put forward to the DWCD for improving the quality of the living 16 Source: Assessment of Children s Homes in Odisha 5

10 conditions of the children. This led to a specific budget outlay by the government as detailed in the results section below. Step IV: Establishment of MIS A robust Management Information System (MIS) was developed using the data collected from the mapping exercise. The dynamic system is intended to integrate the information of each child care home and ensure regular information updates by the different users, namely the JJB, CWC, DWCD and respective child care institutions. The software has been housed at the Department of Women and Child Development in order to maintain the confidentiality. Care has been taken also to protect the identity of the child; therefore, access and usage are restricted to relevant duty bearers or functionaries. Detailed discussions and negotiations were held with government departments to ensure their buy-in on the applicability and use of the MIS. The software developing agency carried out a thorough reading of the JJA and developed flow diagrams and a system manual. This was done to ensure that the various legal provisions are comprehensively captured. Once the manual was approved by the stakeholders, the software was developed. Establishment of the MIS was also an effort to standardise the use of prescribed formats as defined under the JJA. The standardisation helps members of juvenile justice institutions and the DWCD monitor the case progress and take timely decisions for rapid case disposal. Step V: Training of master trainers, JJB, CWC and WCD officials and institution staff Training on the MIS was then organised to develop five master trainers. A two-day workshop 17 was held in Ganjam district where two observation homes and 11 child care institutions are located. Senior officials from the DWCD, JJB and CWC members, probation officers and staff from Observation Homes and other child care institutions attended the training. The master trainers spent around 20 days in the field visiting different child care homes and training staff on how to use the software. Up to now the MIS is functional in two districts, namely Ganjam and Sundergarh, out of thirty districts in the state. The software is expected to be functional in other districts of Odisha in Being operational in only two of the thirty districts in the state, the initiative is at a nascent stage. In the two districts where it is operational, the MIS is being used to monitor the case status by the members of the various JJ institutions, procedural compliance and appropriate placement of children. JJB and CWC members have reported that the availability of relevant information has enabled them to ensure that children in need of care are placed in the institutions that meet the JJA standards. The CWCs are able to process forms according to the format prescribed by the JJA, improving compliance as well as avoiding delays. Resources and Costs The major costs, associated with the mapping of the child care institutions, the development of the MIS and the training provided to staff, is detailed below: 17 Observation homes are institutions run by the government or voluntary associations for the temporary reception of juveniles in conflict with the law during the pendency of their inquiry 6

11 Briefing Paper Series Innovations, Lessons and Good Practices Component INR 18 USD Individual survey of 132 institutions 200,000 4,000 Assessment of six government homes 60,000 1,200 Development of MIS 227,000 4,540 Training 110,000 2,200 Managing NGO database (IT Support) 135,000 2,700 Total 732,000 14,640 Early Results and Potential Benefits This initiative has not only filled the data gap, but also ensured that comprehensive data is available in one place. It also helped identify gaps and develop strategies to improve the quality of the care provided to children in the homes. The Government of Odisha has introduced certain positive policy level initiatives and requested UNICEF to identify the areas of support as part of jointly-agreed rolling work plan. Such initiatives include: Budget allocations to improve infrastructure at observation homes: The assessment findings related to the government-run observation homes has led the Government of Odisha to improve the infrastructure of observation homes and orphanages. Allocations were made in the amount of INR 4 crores (USD 80,000) for renovation of observation homes, and INR 6 crores (USD 1.2 million) for six government-run orphanages. Registration of unregistered child care homes: DWCD has launched an enrolment drive, raising awareness of the JJA and urging all organisations providing care to children to register. At the same time, DWCD has issued circulars to all District Collectors and 19 Magistrates to take action against those institutions which are not registered under JJA 2000 and Impetus towards non-institutional alternates for child care: The Government of Odisha launched a Right to Family campaign and is working on developing a Sponsorship and Foster Care Scheme with a focus on non-institutional child care system. Legislation on adoption is also being revised to ensure the welfare of children. There is recognition of the right of every child to a family through the Bhubaneswar Declarations on Rights of Every Child to Family. A state policy on foster care has been developed. Making child protection policy mandatory for all child care institutions: DWCD has issued a circular to all government-run and non-government-run institutions to maintain the standard protocols as prescribed under the JJA. The circular also calls for the best interest of children. It details dos and don ts as well as the appropriate manner for dealing with children and reporting cases. Application and replication The governments of Gujarat, Chhattisgarh and Jharkhand have already expressed an interest to replicate the model and have had interactions with resource personnel from Odisha to gain a 18 (USD = INR 50) 19 Head of administration at district level 7

12 comprehensive understanding of the model. The Government of Gujarat in particular has been very receptive and is in the process of submitting a final proposal for replicating the initiative. Next steps Since the initiative is at a nascent stage the immediate focus is on operationalising the MIS and making it functional across all districts in Odisha. Besides being the tool for a strong data management, this could also lead to strengthening accountability and communication between the key bodies. Further information List of Resource Persons Ms. Arti Ahuja, IAS, Commissioner cum Secretary, DWCD, Government of Odisha Mr. Nabha Kumar Nayak, IAS, Joint Secretary, ICPS, Child Welfare and Juvenile Justice Act, Government of Odisha Ms. Ushrani Das, OAS, Under Secretary, DWCD, Government of Odisha Ms. Merabhai Pani, Field Officer JJ and ICPS, Government of Odisha Mr. Jose Bergua, Chief of Child Protection, UNICEF Ms. Shairose Mawji, Chief of Field Office, UNICEF Odisha Mr. Laxminarayan Nanda, Child Protection and HIV-AIDS Specialist, UNICEF Odisha List of Reference Documents Mapping the Present: An Attempt to Understand the Present of Child Care Institutions in Odisha Assessment of Children s Homes in Odisha, Sunil Aggarwa Transforming Children s Institutions inorissa:, Raising standards of care and protection in government run children s institutions across Odisha- Presentation by UNICEF Standardised Monitoring Tool for Children s Homes - Change is Possible Transforming Children s Homes through Capacity Building, Aangan and UNICEF State of Children in Orissa, CLAP Transforming Children s Institutions Implementation of Juvenile Justice Act in Orissa: Status and Gaps MIS for children in need of care and protection and children in conflict with law, Presentation by UNICEF 8

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14 The United Nations Children's Fund 73, Lodi Estate New Delhi India