Juvenile Justice System in the Philippines - Republic Act

The Juvenile Justice System in The Philippines Child-appropriate procedures in handling children at risk and cases of children in conflict with the law, whether they commit petty or serious offenses,” - Children in conflict with the law (CICL) are held accountable for the offense they have committed...

The Juvenile Justice System in The Philippines Child-appropriate procedures in handling children at risk and cases of children in conflict with the law, whether they commit petty or serious offenses,” - Children in conflict with the law (CICL) are held accountable for the offense they have committed based on their age, discernment, and imposable penalty. - Based on research - the process of going through ordinary formal criminal justice system is harmful to children and will likely result in reoffending, thus the alternative child-appropriate systems of accountability and rehabilitation. REPUBLIC ACT NO. 10630 AN ACT STRENGTHENING THE JUVENILE JUSTICE SYSTEM IN THE PHILIPPINES, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 9344, OTHERWISE KNOWN AS THE "JUVENILE JUSTICE AND WELFARE ACT OF 2006" AND APPROPRIATING FUNDS THEREFOR Section 1. The Title of Republic Act No. 9344 is hereby amended to read as follows: "An Act Establishing a Comprehensive Juvenile Justice and Welfare System, Creating the Juvenile justice and Welfare Council under the Department of Social Welfare and Development, Appropriating Funds Therefor, and for Other Purposes." REPUBLIC ACT No. 9344 - AN ACT ESTABLISHING A COMPREHENSIVE JUVENILE JUSTICE AND WELFARE SYSTEM, CREATING THE JUVENILE JUSTICE AND WELFARE COUNCIL UNDER THE DEPARTMENT OF JUSTICE, APPROPRIATING FUNDS THEREFOR AND FOR OTHER PURPOSES Section 1. Short Title and Scope. - This Act shall be known as the "Juvenile Justice and Welfare Act of 2006." It shall cover the different stages involving children at risk and children in conflict with the law from prevention to rehabilitation and reintegration. SEC. 4. Definition of Terms. - The following terms as used in this Act shall be defined as follows: (a) "Bail" refers to the security given for the release of the person in custody of the law, furnished by him/her or a bondsman, to guarantee his/her appearance before any court. Bail may be given in the form of corporate security, property bond, cash deposit, or recognizance. (b) "Best Interest of the Child" refers to the totality of the circumstances and conditions which are most congenial to the survival, protection and feelings of security of the child and most encouraging to the child's physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the child. - In posting bail the court must consider mitigating circumstances and terms favorable to the best interest of the child. (e) "Child" refers to a person under the age of eighteen (18) years. (d) "Child at Risk" refers to a child who is vulnerable to and at the risk of committing criminal offenses because of personal, family and social circumstances, such as, but not limited to, the following: (1) being abused by any person through sexual, physical, psychological, mental, economic or any other means and the parents or guardian refuse, are unwilling, or unable to provide protection for the child; (2) being exploited including sexually or economically; (3) being abandoned or neglected, and after diligent search and inquiry, the parent or guardian cannot be found; (4) coming from a dysfunctional or broken family or without a parent or guardian; (5) being out of school; (6) being a streetchild; (7) being a member of a gang; (8) living in a community with a high level of criminality or drug abuse; and (9) living in situations of armed conflict. (e) "Child in Conflict with the Law" refers to a child who is alleged as, accused of, or adjudged as, having committed an offense under Philippine laws. (f) "Community-based Programs" refers to the programs provided in a community setting developed for purposes of intervention and diversion, as well as rehabilitation of the child in conflict with the law, for reintegration into his/her family and/or community. (g) "Court" refers to a family court or, in places where there are no family courts, any regional trial court. (h) "Deprivation of Liberty" refers to any form of detention or imprisonment, or to the placement of a child in conflict with the law in a public or private custodial setting, from which the child in conflict with the law is not permitted to leave at will by order of any judicial or administrative authority. (i) "Diversion" refers to an alternative, child-appropriate process of determining the responsibility and treatment of a child in conflict with the law on the basis of his/her social, cultural, economic, psychological or educational background without resorting to formal court proceedings. (j) "Diversion Program" refers to the program that the child in conflict with the law is required to undergo after he/she is found responsible for an offense without resorting to formal court proceedings. Intervention" refers to a series of activities which are designed to address issues that caused the child to commit an offense. It may take the form of an individualized treatment program which may include counseling, skills training, education, and other activities that will enhance his/her psychological, emotional and psycho-social well-being. (k) "Initial Contact With-the Child" refers to the apprehension or taking into custody of a child in conflict with the law by law enforcement officers or private citizens. It includes the time when the child alleged to be in conflict with the law receives a subpoena under Section 3(b) of Rule 112 of the Revised Rules of Criminal Procedure or summons under Section 6(a) or Section 9(b) of the same Rule in cases that do not require preliminary investigation or where there is no necessity to place the child alleged to be in conflict with the law under immediate custody. (I) "Intervention" refers to a series of activities which are designed to address issues that caused the child to commit an offense. It may take the form of an individualized treatment program which may include counseling, skills training, education, and other activities that will enhance his/her psychological, emotional and psycho-social well- being. (m) "Juvenile Justice and Welfare System" refers to a system dealing with children at risk and children in conflict with the law, which provides child-appropriate proceedings, including programs and services for prevention, diversion, rehabilitation, re-integration and aftercare to ensure their normal growth and development. (n) "Law Enforcement Officer" refers to the person in authority or his/her agent as defined in Article 152 of the Revised Penal Code, including a barangay tanod. (0) "Offense" refers to any act or omission whether punishable under special laws or the Revised Penal Code, as amended. (p) "Recognizance" refers to an undertaking in lieu of a bond assumed by a parent or custodian who shall be responsible for the appearance in court of the child in conflict with the law, when required. (q) "Restorative Justice" refers to a principle which requires a process of resolving conflicts with the maximum involvement of the victim, the offender and the community. It seeks to obtain reparation for the victim; reconciliation of the offender, the offended and the community; and reassurance to the offender that he/she can be reintegrated into society. It also enhances public safety by activating the offender, the victim and the community in prevention strategies. (r) "Status Offenses" refers to offenses which discriminate only against a child, while an adult does not suffer any penalty for committing similar acts. These shall include curfew violations; truancy, parental disobedience and the like. (s) "Youth Detention Home" refers to a 24-hour child-caring institution managed by accredited local government units (LGUs) and licensed and/or accredited nongovernment organizations (NGOs) providing short-term residential care for children in conflict with the law who are awaiting court disposition of their cases or transfer to other agencies or jurisdiction. (t) "Youth Rehabilitation Center" refers to a 24-hour residential care facility managed by the Department of Social Welfare and Development (DSWD), LGUs, licensed and/or accredited NGOs monitored by the DSWD, which provides care, treatment and rehabilitation services for children in conflict with the law. Rehabilitation services are provided under the guidance of a trained staff where residents are cared for under a structured therapeutic environment with the end view of reintegrating them into their families and communities as socially functioning individuals. Physical mobility of residents of said centers may be restricted pending court disposition of the charges against them. (u) "Victimless Crimes" refers to offenses where there is no private offended party. SEC. 4. Definition of Terms. – The following terms, as used in this Act, shall be defined as follows: (s) ‘Bahay Pag-asa’ – refers to a 24-hour child-caring institution established, funded and managed by local government units (LGUs) and licensed and/or accredited nongovernment organizations (NGOs) providing short-term residential care for children in conflict with the law who are above fifteen (15) but below eighteen (18) years of age who are awaiting court disposition of their cases or transfer to other agencies or jurisdiction. - Part of the features of a ‘Bahay Pag-asa’ is an intensive juvenile intervention and support center. This will cater to children in conflict with the law in accordance with Sections 20, 20-A, and 20-B hereof. - A multi-disciplinary team composed of a social worker, a psychologist/mental health professional, a medical doctor, an educational/guidance counselor, and a Barangay Council for the Protection of Children (BCPC) member shall operate the ‘Bahay Pag-asa’. The team will work on the individualized intervention plan with the child and the child’s family.Who are called Child-at-Risk (CAR)? Under Sec. 57 of RA 9344, Those who violate ordinances enacted by local government such as: 1. curfew violations, 2. truancy, 3.parental disobedience, 4. anti-smoking and anti-drinking laws, as well as 5. light offenses and misdemeanors against public order or safety such as: a. disorderly conduct, g. vandalism b. public scandal, h. gambling, c. harassment i. mendicancy d. drunkenness, j. littering, e. public intoxication, k. public urination, and: f. criminal nuisance, l. trespassing M. Those who violate the following: (1) Status offenses under Section 57 of the Act; (2) Prostitution under Section 202 of the Revised Penal Code, as amended; (3) Mendicancy under Presidential Decree No. 1563; and (4) Sniffing of rugby under Presidential Decree No. 1619. A. Initial Contact with the Child a. Taking Custody of a Child without Warrant - The law enforcement officer or a private person taking into custody a child in conflict with the law without a warrant shall observe the provisions in Sections 5, 8 and 9 of Rule 113 of the Revised Rules of Criminal Procedure, and shall forthwith deliver the child to the nearest police station. The child shall be proceeded against, in accordance with Section 7 of Rule 112 of the Rules of Criminal Procedure. Section 5, 8 & 9 of Rule 113 Section 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraph (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112. (5a) Section 8. Method of arrest by officer without warrant. — When making an arrest without a warrant, the officer shall inform the person to be arrested of his authority and the cause of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, has escaped, flees or forcibly resists before the officer has opportunity so to inform him, or when the giving of such information will imperil the arrest. (8a) Section 9. Method of arrest by private person. — When making an arrest, a private person shall inform the person to be arrested of the intention to arrest him and cause of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, or has escaped, flees, or forcibly resists before the person making the arrest has opportunity to so inform him, or when the giving of such information will imperil the arrest. (9a) Section 7, Rule 112 Section 7. When accused lawfully arrested without warrant. — When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a peace office directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person. Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen (15) days from its inception. After the filing of the complaint or information in court without a preliminary investigation, the accused may, within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his defense as provided in this Rule. (7a; sec. 2, R.A. No. 7438) B. Procedure for Taking Child Into Custody (1) Properly identify oneself and present proper identification to the child. (2) Immediately notify the child’s parents or guardians, the Local Social Welfare and Development Officer (LSWDO), and the Public Attorney’s Office (PAO) of the child’s apprehension. The notification shall be made not later than Eight (8) hours after apprehension. (3) Explain to the child, in simple language and in a language or dialect, which the child can understand: a. The reason for placing the child under custody; b. The offense allegedly committed; and c. The child’s constitutional rights and the child’s rights under Republic Act 19 7438 or An Act Defining Certain Rights of Person Arrested, Detained or Under Custodial Investigation as well as the Duties of the Arresting, Detaining and Investigating Officers, and Providing Penalties for Violations Thereof [R.A. 7438]. If the child cannot understand the language or local dialect or suffers from disability, an interpreter or a mental health professional shall be provided. (4) Determine the age of the child, in accordance with the guidelines provided in Rule 26 37.b herein. (5) Take the child immediately to the proper medical or health officer for a thorough physical and mental examination. Whenever medical treatment is required, steps shall be immediately undertaken to provide the same. (6) Immediately but not later than eight (8) hours after apprehension, turn over the custody of the child to the Local Social Welfare and Development Office or other accredited NGOs. However, in cases where the child is fifteen (15) years old or below, the law enforcement officer shall immediately release the child to the custody of the child’s parents or guardian, or in their absence, the child’s nearest relative, upon assessment and recommendation of the Local Social Welfare 36 Development Officer, in accordance with Rule 36.a herein. The above procedure must be followed, in strict observance of the prohibitions provided in Section 21 of the Act and in RULE 32 herein, while the child is in the custody of a law enforcement officer. A child in conflict with the law shall only be searched by a law enforcement officer of the same gender, as prescribed in Section 21 of the Act. It is the duty of the enforcement officer to refer the child to the LSWDO for the determination of discernment as provided under Rule 38. C. Initial Investigation The initial investigation is the stage after initial contact, when the law enforcement officer gather relevant evidence including the testimonies of witnesses, documents, object evidence, local knowledge and review of scenes when a crime allegedly involving a child is reported. The conduct of the initial investigation shall be guided by the principle of the best interest of the child and consideration for the concerns and needs of the victim. It is the duty of the law enforcement officer to refer the child to the LSWDO for the determination of discernment as provided under Rule 38. D. Duty of Law Enforcement Officer When Interviewing the Child a. The law enforcement officer may interview a child for the purpose of determining the 9 child’s personal circumstance including among others, his or her name, name of his or her parents, the child’s date of birth, and home address. b. No law enforcement officer shall compel any child to make any statement or provide any information that might incriminate the child. The law enforcement officer shall have the duty to inform the child of his or her rights under the Constitution and under RA 17438. c. Any statement or information made by the child referring to the crime shall require the presence of the following persons provided in Section 22 of the Act: (1.) The child’s counsel of choice or in the absence thereof, a lawyer from the 18 Public Attorney’s Office; (2) The child’s parents, guardian, or nearest relative, as the case may be; and (3) The LSWDO The law enforcement officer from the Women and Child Protection Desk shall conduct 22 the interview of the child. E. Requirements where a Child Gives a Statement The law enforcement officer from the Women and Child Protection Desk shall ensure that all statements signed or thumb-marked by the child during the investigation shall be witnessed by the child’s parents or guardian, the LSWDO, and counsel in attendance, who shall affix their signatures to the said statement. F. Report on the Initial Investigation Report on the Initial Investigation 30 After the initial investigation, the law enforcement officer conducting the same shall 31 prepare a report, which contains the following information: (1) Whether handcuffs or other instruments of restraint were used, and if so, the 33 reason for such use; (2) The fact that the parents or guardian of a child, the DSWD or the LSWDO, and 35 the PAO have been duly-informed of the apprehension and the details thereof; (3) The exhaustion of measures to determine the age of a child; (4) The basis for the determination of the age of the child; (5) The precise details of the physical and medical examination or the failure to 39 submit a child to such examination; (6) To whom the child was released and the basis for the release; (7) Whether or not the child is exploited in the commission of the crime, as provided 2 in Section 20-C; (8) If the child is above fifteen, the assessment of the Social Worker whether the child acted with or without discernment; (9) Where the case shall be referred, as provided in the RULE and the basis for such disposition, i.e., the nature of the offense allegedly committed by the child, the corresponding imposable penalty for the commission of the alleged offense, and the assessment of discernment, as provided in RULE 38. G. Report on the Initial Investigation After the initial investigation, the law enforcement officer conducting the same shall prepare a report, which contains the following information: (1) Whether handcuffs or other instruments of restraint were used, and if so, the 33 reason for such use; (2) The fact that the parents or guardian of a child, the DSWD or the LSWDO, and the PAO have been duly-informed of the apprehension and the details thereof; (3) The exhaustion of measures to determine the age of a child; (4) The basis for the determination of the age of the child; (5) The precise details of the physical and medical examination or the failure to submit a child to such examination; (6) To whom the child was released and the basis for the release; (7) Whether or not the child is exploited in the commission of the crime, as provided 2 in Section 20-C; (8) If the child is above fifteen, the assessment of the Social Worker whether the child acted with or without discernment; (9) Where the case shall be referred, as provided in the RULE 30 and the basis for such disposition, i.e., the nature of the offense allegedly committed by the child, the corresponding imposable penalty for the commission of the alleged offense, and the assessment of discernment, as provided in RULE 38. H. Where the Case Shall be Referred After the initial investigation, the law enforcement officer shall determine if the case of the child shall be referred to: (1) The LSWDO for intervention in accordance with Sections 20, 20-A and 20-B of the Act and PART IX of these Rules if the child is: (a) Fifteen (15) years old or below; or 15 (b) Above 15 but below 18 years of age and acted without discernment. (2) Diversion, in accordance with Section 23 of the Act and PART X of these Rules, 17 to be administered by the: Law Enforcement Officer if: (a) The child is above but below 18 years of age, acted with discernment, (b) The alleged committed offense has an imposable penalty of not more than six (6) years of imprisonment; or LSWDO if: (a) The child is above 15 but below 18 years of age, acted with discernment; and (b) The child allegedly committed a victimless offense with an imposable penalty of not more than six (6) years of imprisonment. (3) The Prosecutor or Judge, if the child is above fifteen (15) but below 18 years of age, acted with discernment, and allegedly committed an offense with an imposable penalty of more than six (6) years of imprisonment. The report on the initial investigation, as required under RULE 27, shall state where the case shall be referred to, and the basis for such disposition, which shall include the following information: (1) The nature of the offense allegedly committed by the child; (2) The corresponding imposable penalty for the commission of the offense; and (3) Where the case of the child shall be referred in the event of an assessment that the child acted with discernment, as provided in RULE 38. I. Turn Over Custody In all cases, the law enforcement officer shall turn over the physical custody of the child to the LSWDO within eight (8) hours from apprehension, as required under Section 21(i) of the Act. The physical custody of the child shall be transferred to the LSWDO, even if the law enforcement officer has not yet exhausted all measures to determine the age of the child under Rule 35.b and even if the initial investigation under RULE 27 has not yet been terminated. J. Pending Turn Over Custody Pending the turnover of the custody of the child to the parents, guardians or the LSWDO, in cases when the child is apprehended at night time or during weekends, the law enforcement officers shall ensure that the child shall be temporarily secured in an area separate from that of the opposite sex and adult offenders, and shall not be placed inside the detention cell or jail. The temporary physical custody of child in such cases may also be given to an NGO that is licensed and accredited by the DSWD, a faith based organization, a foster parent, or a member of the BCPC who is selected based on the criteria set by the DILG. The LGUs shall ensure that the Local Social Welfare and Development Office is available to receive referrals of CICL cases, twenty-four hours a day and seven days a week. K. Prohibited Acts When the Child is in Custody 1. The law enforcement officer shall refrain from subjecting the child in conflict with the law to greater restraint than is necessary for apprehension. 2. If handcuffs or other instruments of restraint are employed on the child, the law enforcement officer shall record such fact in the report on the initial investigation and the reason for the use of such instruments of restraint. 3. As required under Section 21(e) of the Act, the law enforcement officer, from the time of initial contact with the child, shall also avoid displaying or using any firearm, weapon, handcuffs or other instruments of force or restraint, unless absolutely necessary and only after all other methods of control have been exhausted and have failed. 4. The law enforcement officer shall not use violence or unnecessary force on the child in conflict with the law. 5. A child in conflict with the law shall never be locked up in a detention cell, such as the barangay lock-up, police station lock-up, jails managed by BJMP, provincial jails and other similar facilities, but shall only be placed in a “Bahay Pag-asa” or youth care facility. 6. A child in conflict with the law who is in custody shall not be searched by a law enforcement officer of the opposite sex. 7. If there is pending turn over the child shall be secured in quarters separate from that of the opposite sex and adult offenders. 8. All duty-bearers shall not use vulgar or profane words against, or in the presence of, the child in conflict with the law. 9. All duty-bearers shall not sexually harass or abuse, or make sexual advances on the child in conflict with the law. L. LIABILITY OF A CHILD IN CONFLICT WITH THE LAW Who are exempted from Criminal Liability? (1) A child fifteen (15) years of age or under at the time of the commission of the 27 offense; and (2) A child above fifteen (15) years but below eighteen (18) years of age, who acted 29 without discernment, at the time of the commission of the offense. What treatment shall be administered to children exempted from criminal liability? Ans. They are subjected to an intervention program. a. If it has been determined that the child taken into custody is fifteen (15) years old or below, the authority which will have an initial contact with the child, in consultation with the local social welfare and development officer, has the duty to immediately release the child to the custody of his/her parents or guardian, or in the absence thereof, the child’s nearest relative. The child shall be subjected to a community-based intervention program supervised by the local social welfare and development officer, unless the best interest of the child requires the referral of the child to a youth care facility or ‘Bahay Pag-asa’ managed by LGUs or licensed and/or accredited NGOs monitored by the DSWD. b. The local social welfare and development officer shall determine the appropriate programs for the child who has been released, in consultation with the child and the person having custody over the child. If the parents, guardians or nearest relatives cannot be located, or if they refuse to take custody, the child may be released to any of the following: “(a) A duly registered nongovernmental or religious organization; “(b) A barangay official or a member of the Barangay Council for the Protection of Children (BCPC); “(c) A local social welfare and development officer; or, when and where appropriate, the DSWD. - If the child has been found by the local social welfare and development officer to be dependent, abandoned, neglected or abused by his/her parents and the best interest of the child requires that he/she be placed in a youth care facility or ‘Bahay Pag-asa’, the child’s parents or guardians shall execute a written authorization for the voluntary commitment of the child: Provided , That if the child has no parents or guardians or if they refuse or fail to execute the written authorization for voluntary commitment, the proper petition for involuntary commitment shall be immediately filed by the DSWD or the Local Social Welfare and Development Office (LSWDO) pursuant to Presidential Decree No. 603, as amended, otherwise known as ‘The Child and Youth Welfare Code’ and the Supreme Court rule on commitment of children: Provided, further , That the minimum age for children committed to a youth care facility or ‘Bahay Pag-asa’ shall be twelve (12) years old.” “SEC. 20-A. Serious Crimes Committed by Children Who Are Exempt From Criminal Responsibility. – A child who is above twelve (12) years of age up to fifteen (15) years of age and who commits parricide, murder, infanticide, kidnapping and serious illegal detention where the victim is killed or raped, robbery, with homicide or rape, destructive arson, rape, or carnapping where the driver or occupant is killed or raped or offenses under Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of 2002) punishable by more than twelve (12) years of imprisonment, shall be deemed a neglected child under Presidential Decree No. 603, as amended, and shall be mandatorily placed in a special facility within the youth care faculty or ‘Bahay Pag-asa’ called the Intensive Juvenile Intervention and Support Center (IJISC). - In accordance with existing laws, rules, procedures and guidelines, the proper petition for involuntary commitment and placement under the IJISC shall be filed by the local social welfare and development officer of the LGU where the offense was committed, or by the DSWD social worker in the local social welfare and development officer’s absence, within twenty-four (24) hours from the time of the receipt of a report on the alleged commission of said child. The court, where the petition for involuntary commitment has been filed shall decide on the petition within seventy-two (72) hours from the time the said petition has been filed by the DSWD/LSWDO. - The court will determine the initial period of placement of the child within the IJISC which shall not be less than one (1) year. The multi-disciplinary team of the IJISC will submit to the court a case study and progress report, to include a psychiatric evaluation report and recommend the reintegration of the child to his/her family or the extension of the placement under the IJISC. - The multi-disciplinary team will also submit a report to the court on the services extended to the parents and family of the child and the compliance of the parents in the intervention program. The court will decide whether the child has  successfully completed the center-based intervention program and is already prepared to be reintegrated with his/her family or if there is a need for the continuation of the center-based rehabilitation of the child. The court will determine the next period of assessment or hearing on the commitment of the child.” “SEC. 20-B. Repetition of Offenses. – A child who is above twelve (12) years of age up to fifteen (15) years of age and who commits an offense for the second time or oftener: Provided, That the child was previously subjected to a community-based intervention program, shall be deemed a neglected child under Presidential Decree No. 603, as amended, and shall undergo an intensive intervention program supervised by the local social welfare and development officer: Provided, further, That, if the best interest of the child requires that he/she be placed in a youth care facility or ‘Bahay Pag-asa’, the child’s parents or guardians shall execute a written authorization for the voluntary commitment of the child: Provided, finally, That if the child has no parents or guardians or if they refuse or fail to execute the written authorization for voluntary commitment, the proper petition for involuntary commitment shall be immediately filed by the DSWD or the LSWDO pursuant to Presidential Decree No. 603, as amended.” NOTE: The exemption from criminal liability of children under this Rule does not include exemption from civil liability. M. AGE OF THE CHILD a. A child is deemed to be fifteen (15) years of age on the day of the fifteenth anniversary 14 of the child’s date of birth. b. Determination of the age of the child are measured from the following: (1) Obtain documents that show proof of the child’s age, such as: a. Child’s birth certificate; b. Child’s baptismal certificate; or c. Any other pertinent documents, such as but not limited to, the child’s school records, dental records, travel papers, etc. (2) The law enforcement officer may obtain the above documents from any of the following: a. Parents, guardian or relatives of the child (for copies of any of the above documents); b. Local Civil Registrar or the National Statistics Office (for a copy of the birth certificate); c. School where the child attends (for school records, dental records, birth certificate or baptismal certificate, when required by the school); d. Local Health Officer (for medical records); and e. Church (for baptismal records). If the above documents cannot be obtained or pending receipt of such documents, the law enforcement officer shall exhaust other measures to determine the age of the child by: (1) Interviewing the child and obtaining information that indicate age (e.g., date of birth, grade level in school); (2) Interviewing persons who may have knowledge of the age of the child (e.g., relatives, neighbors, teachers, classmates); (3) Evaluating the physical appearance (e.g., height, built) of the child; and (4) Obtaining other relevant evidence of age. N. In case of doubt as to the age of the child, after all the measures are exhausted to determine it, the doubt shall be resolved in favor of the child’s minority O. The child in conflict with the law shall enjoy the presumption of minority. The child shall enjoy all the rights of a child in conflict with the law, until the child is proven to be eighteen (18) years old or older, at the time of the commission of the crime. P. If the Child’s Age is Contested: a. any person contesting the age of the child in conflict with the law, prior to the filing of the information in any appropriate Court, may file a case in a summary proceeding for the determination of the child’s age before the Family Court, which shall decide the case within twenty-four (24) hours from the receipt of the appropriate pleadings of all interested parties. b. If a case has been filed against the child in conflict with the law and is pending in the appropriate Court, a person may file a motion to determine the age of the child in the same Court where the case is pending. Pending the hearing on the said motion, the proceedings on the main case shall be suspended. Q. Custody of the Child Below Age of Criminal Responsibility - If the parents, guardians or nearest relatives cannot be located, or if they refuse to take custody of the child, the child may be released by the authority having initial contact with the child to any of the following: (1) Duly-registered non-governmental or religious organization; (2) Barangay Official; (3) Member of the BCPC; (4) LSWDO; or (5) DSWD, when and where appropriate. If the parents, guardians or relatives are unable to take custody of the child due to incarceration or a mental or physical incapacity, the child shall be referred to alternative placements such as foster homes, in addition to what has been provided in the Act, as amended. R. Involuntary Commitment. The LSWDO shall determine if the child is dependent, abandoned, neglected or abused by the parents for purposes of filing a Petition for Involuntary Commitment, whenever necessary and appropriate. If the community-based placement of the child shall put the safety of the child in danger, in view of the alleged commission of the offense, the LSWDO shall encourage the parent or guardian of the child to request for temporary placement of the child with the DSWD or licensed and accredited NGOs. In the event that a parent or guardian does not agree with the temporary custody of the child, the LSWDO shall carefully review the case of the child and file a Petition for Involuntary Commitment when sanctioned by law, in accordance with P.D. 603 and the Supreme Court Rule on the Commitment of Children. S. A Petition for Involuntary Commitment shall be filed by the LSWDO, or in his or her absence, by the DSWD if: (a) The child in conflict with the law who is at least twelve (12) years old is determined by the LSWDO to be dependent, abandoned, neglected or abused by the parents, and the best interest of the child requires that the child be placed in 22 a youth care facility or “Bahay Pag-asa,” pursuant to Section 20 of the Act; or (b) The child, who is above twelve (12) years of age up to fifteen (15) years of age, commits a serious crime covered by Section 20-A of the Act; or (c) The child, who is above twelve (12) years of age up to fifteen (15) years of age, commits an offense for the second time or oftener, and if the best interest of the child requires that the child be placed in a youth care facility or “Bahay Pag-asa. The filing of the Petition for Involuntary Commitment must be for the purpose of rehabilitating the child, and not to terminate parental authority, unless termination of parental authority is absolutely necessary and appropriate for the best interest and welfare of the child. T. Children Who Acted With Discernment. If the child in conflict with the law is above fifteen (15) years old but below eighteen (18) years of age acted with discernment, the child shall proceed to diversion under Chapter 15 of the Act - The child will undergo Diversion. U. Basis for Assessment of Discernment - In making an assessment of discernment, the LSWDO shall use the Discernment Assessment Tool developed by the DSWD. The DSWD shall issue the necessary guidelines and develop the standard tools to help the LSWDOs in the assessment of discernment. The DSWD shall regularly review and enhance the tool and its guidelines. SC DISCERNMENT ASSESSMENT GUIDELINES Determining discernment, courts shall consider the totality of facts and circumstances in each case. Such circumstances include, but are not limited to: (i) the very appearance, the very attitude, the very comportment and behavior of said minor, not only before and during the commission of the act, but also after and even during trial, (ii) the gruesome nature of the crime, (iii) the minor’s cunning and shrewdness, (iv) the utterances of the minor, (v) his [or her] overt acts before, during and after the commission of the crime, (vi) the nature of the weapon used, (vii) his [or her] attempt to silence a witness, and (viii) his [or her] disposal of evidence or his [or her] hiding the corpus delicti.These guidelines encapsulate the carefully crafted rules and principles in dealing with children in conflict with law, taking into account their rights and special circumstances. - The assessment of a social worker is merely evidentiary and is not binding upon the court. Ultimately, the court finally determines discernment, based on its own appreciation of all the facts and circumstances in each case V. Intervention for Children Exempt from Criminal Liability Rule. Intervention Programs for Children in Conflict with the Law Who are Exempt from Criminal Liability. The following children, who are exempt from criminal liability, shall be provided with the appropriate Tertiary Intervention Programs: (a) Those taken into custody who are fifteen (15) years old or below; and (b) Those above fifteen but below eighteen (18) years old and determined to have acted without discernment. The DSWD shall issue the necessary guidelines to aid the Local Social Welfare and Development Officer in the formulation, implementation and monitoring of appropriate and effective intervention programs for children who are exempt from criminal liability. W. Management of Cases of Children Who Commit Serious Crimes Under Section 20-A Rule, Crimes Covered; Intensive Intervention. A CICL, above 12 years up to 15 years of age, who committed either or a combination of the following offenses: (1) Parricide; (2) Murder; (3) Infanticide; (4) Kidnapping and serious illegal detention where the victim is killed or raped; (5) Robbery with homicide or rape; (6) Destructive arson; (7) Rape; (8) Carnapping where the driver or occupant is killed or raped; or (9) Offenses under Republic Act No. 9165 punishable by more than twelve (12) years of imprisonment is still exempted from criminal liability but the child shall be deemed a “neglected child” under Presidential Decree No. 603, as amended, and shall be mandatorily placed in a special facility within the youth care facility or “‘Bahay Pag-asa,”’ which shall be called 36 the Intensive Juvenile Intervention and Support Center (IJISC). Completion of the Center-Based Intervention Program - The Court will decide whether the child has successfully completed the center-based intervention program, and whether the child is prepared to be reintegrated with the family or if there is a need for the continuation of the center-based rehabilitation of the child. The Court will determine the next period of assessment or hearing on the commitment of the child. - A CICL, above 12 years up to 15 years of age and is exempt from criminal liability, who committed an offense for the second time or oftener, and who was previously subjected to a community-based intervention program, shall be deemed to be a “neglected child” under Presidential Decree No. 603, as amended, and shall undergo an intensive community-based intervention program, based on individual case management plans to be supervised by the Local Social Welfare and Development Officer. - The child’s parents or guardians shall execute a written authorization for the voluntary commitment of the child. If the CICL has no parents or guardians or if they refuse or fail to execute the written authorization for voluntary commitment, the proper Petition for Involuntary Commitment shall be immediately filed by the DSWD or the LSWDO. Y. DIVERSION FOR CHILDREN WHO ACTED WITH DISCERNMENT Diversion refers to an alternative, child-appropriate process of determining the 4 responsibility and treatment of a child in conflict with the law, on the basis of the child’s social, cultural, economic, psychological or educational background, without resorting to 6 formal Court proceedings. - In short before the child’s case will be resorted to Family court, diversion must be determined first. Diversion process shall be centered on the restorative approach, and as far as applicable, shall use restorative justice processes, which may include but not limited to: (a) victim offender mediation; (b) community and family group conferencing; (c) circle sentencing; (d) peacemaking circles; (e) reparative probation and community boards and panels and (f) existing community accepted justice practices that embody restorative justice. In formulating and implementing a diversion program, the following principles shall be considered: (a) Application of restorative justice principles (b) Use of positive measures; (c) Full mobilization of all possible resources, which include the family, volunteers, schools and other community institutions; (d) Effective, fair and humane dealing with the child; and (e) Promotion of the well-being of the child. Who Shall Undergo Diversion? (a) Is above fifteen (15) years but below eighteen (18) years of age; (b) Acted with discernment; and (c) Allegedly committed an offense with an imposable penalty of not more than six (6) years of imprisonment if diversion is conducted at the barangay, police or prosecutor’s level; and not more than twelve (12) years of imprisonment, if diversion is resorted to by the Court. Where Diversion May be Implemented? - If the imposable penalty for the offense committed is not more than six (6) years of imprisonment, diversion may be implemented at the: (a) Katarungang Pambarangay level, before the Punong Barangay; (b) Police investigation stage, before the law enforcement officer; or (c) Preliminary Investigation stage, before the Prosecutor. - If the offense with the imposable penalty of not more than six (6) years imprisonment is a victimless crime, the diversion proceedings shall be managed by the LSWDO, in coordination with the BCPC. - If the imposable penalty for the offense committed exceeds six (6) years of imprisonment but not more than twelve (12) years of imprisonment, diversion may be resorted to only by the Court. Restorative Justice processes, which may include but not limited to: (a) victim offender mediation; (b) community and family group conferencing; (c) circle 10 sentencing; (d) peacemaking circles; (e) reparative probation and community boards and panels and (f) existing community accepted justice practices that embody restorative justice. Z. Where Diversion May be Implemented? - if the imposable penalty for the offense committed is not more than six (6) years of imprisonment, diversion may be 33 implemented at the: (a) Katarungang Pambarangay level, before the Punong Barangay (b) Police investigation stage, before the law enforcement officer, (c) Preliminary Investigation stage, before the Prosecutor - If the offense with the imposable penalty of not more than six (6) years imprisonment is a victimless crime, the diversion proceedings shall be managed by the LSWDO, in 3 coordination with the BCPC. - If the imposable penalty for the offense committed exceeds six (6) years of 5 imprisonment but not more than twelve (12) years of imprisonment, diversion may be 6 resorted to only by the Court. Different Level of Diversion 1. Katarungang Pambarangay Level - The diversion program at the Katarungang Pambarangay level shall be formulated by the Diversion Committee. The supervision of the Diversion Program at this level shall be done by the Punong Barangay, with the assistance of the BCPC. - the Punong Barangay handling the case shall, within three (3) days from the determination of the absence of jurisdiction or termination of the diversion proceedings as provided below, forward the records of the case to the: (1) Law enforcement officer or Prosecutor – when the child or the child’s parents or guardian do not consent to a diversion. Upon the issuance of the corresponding document, certifying to the fact that no agreement has been reached by the parties, the case shall be filed according to the regular process. (2) Prosecutor or the Court – when the case involves an offense with an imposable penalty of more than six (6) years imprisonment. 2. Law Enforcement Level (1) After the conduct of diversion proceedings at the Katarungang Pambarangay level, the child or the child’s parents or guardian do not consent to a diversion, and the Punong Barangay forwards the case of the child. (2) After the conduct of the initial investigation, the law enforcement officer 19 determines that the child is above but below 18 years of age, acted with discernment and allegedly committed an offense, that is not a victimless crime, with an imposable penalty of not more than six (6) years of imprisonment - Diversion at the police investigation stage shall be handled by a Diversion Committee that is chaired by a law enforcement officer from the Women and Children Protection Desk. - The law enforcement officer handling the case shall forward the records to the Prosecutor or Judge, when the case involves an offense with an imposable penalty of more than six (6) years imprisonment; or the child or the child’s parents or guardians do not consent to a diversion. The case records shall be forwarded within three (3) days from the determination of the absence of jurisdiction or the termination of the Diversion Proceedings as stated above. Upon receipt of the referral, the Prosecutor or Judge shall then conduct the Preliminary Investigation and determine whether or not the child should remain in custody and correspondingly charged in Court 3. Level of the LSWDO in Cases of Victimless Crimes - Diversion shall be handled at the level of the LSWDO, where after the conduct of initial investigation, the law enforcement officer determines that the child is above 15 but below 18 years of age, acted with discernment and allegedly committed a victimless 6 crime where the imposable penalty is not more than six (6) years of imprisonment. 4. Level of the Prosecutor - In cases where no consent or agreement to a diversion was reached at the level of the law enforcement officer or LSWDO conducting the Diversion Proceedings, the Prosecutor shall still endeavor to agree to a diversion program. - Diversion at the Preliminary Investigation stage shall be conducted by a Diversion Committee chaired by a Prosecutor. Diversion Proceedings Duties of the Authority Handling the Diversion Proceedings - The authority handling the Diversion Proceedings shall: (1) Explain to the child and the child’s family the objective of the Diversion Proceedings, the value of diversion, and the consequence of not undergoing diversion. (2) Ask the child about the circumstances of the offense, the motives or purpose behind the offense and the factors that led the child to commit the offense. (3) Ask the child about some personal circumstances, including details of the child’s parents and family, peers and educational status. (4) Make the child in conflict with the law understand the consequences of the child’s actions and the corresponding responsibilities. (5) Ensure that the child understands and realizes his or her accountability; make the child feel remorse for his or her actions; and guide the child to take 36 responsibility for repairing the harm done, in lieu of the filing a formal case in the Court. Kinds of Diversion Programs (1) At the level of the Punong Barangay (a) Restitution of property; (b) Reparation of the damage caused; (c) Indemnification for consequential damages; (d) Written or oral apology; (e) Care, guidance and supervision orders; (f) Counseling for the child in conflict with the law and the child’s family; (g) Attendance in trainings, seminars and lectures on: (i) anger management skills; (ii) problem solving and/or conflict resolution skills; (iii) values formation; and (iv) other skills which will aid the child in dealing with situations which can lead to the repetition of the offense; (h) Participation in available community-based programs, including community service; or (i) Participation in education, vocation and life skills programs (2) At the level of the law enforcement officer and the Prosecutor: (a) Diversion programs specified under paragraphs (1)(a) to (1)(i) above (or those in the Barangay Level); and (b) Confiscation and forfeiture of the proceeds or instruments of the crime. (3) At the level of the appropriate Court: - Where the imposable penalty for the crime committed exceeds six (6) years imprisonment, diversion measures may be resorted to only by the Court, and will proceed in accordance with the Supreme Court Rule on Juveniles in Conflict with the Law. (a) Diversion programs specified under paragraphs (a) and (b) above (or all those in the Level of Prosecutor); (b) Written or oral reprimand or citation; (c) Fine; (d) Payment of the cost of the proceedings; or (e) Institutional care and custody. Failure to Comply with the Contract of Diversion - Failure to comply with the terms and conditions of the Contract of Diversion, as certified by the LSWDO, shall give the offended party the option to institute the appropriate legal action. In cases where there is failure of diversion at the Barangay level, the Punong Barangay that conducted the Diversion Proceedings, upon a finding of failure to comply, may refer the case of the child to the law enforcement officer or Prosecutor, as if there is no consent to the diversion, or that diversion is not appropriate and desirable for the child. - In cases where the offense committed is a victimless crime, the LSWDO that conducted the diversion proceedings, upon a finding of failure to comply, may refer the case of the child to the Prosecutor, as if there is no consent to the diversion or that diversion is not 36 appropriate and desirable for the child. During Diversion Proceedings The period of prescription of the offense shall be suspended until the completion of the Diversion Proceedings, but shall not exceed forty-five (45) days. During the Diversion Program The period of prescription of the offense shall be suspended during the effectivity of the Diversion Program but shall not exceed two (2) years. PROSECUTION Preliminary Investigation and Filing of Information The Prosecutor shall conduct a preliminary investigation only in the following cases: (a) when the child in conflict with the law does not qualify for diversion; (b) when the child, 17 his/her parents or guardian does not agree to diversion, as specified in Sections 27 and 28; and (c) when considering the assessment and recommendation of the Social Worker, the Prosecutor determines that diversion is not appropriate for the child in conflict with the law. Upon serving the subpoena and the Affidavit of Complaint, the Prosecutor shall notify the counsel of choice or in his or her absence, the Public Attorney’s Office of such service, as well as the personal information, and place of custody of the child in conflict with the law. Upon Determination of Probable Cause - Upon determination of probable cause by the Prosecutor, the Information against the child shall be filed before the Family Court, within forty-five (45) days from the start of the Preliminary Investigation. The Information must allege that the child acted with discernment, based on the initial assessment of the LSWDO. Diversion Measures Where the child in conflict with the law is at least fifteen (15) years and one (1) day old but below eighteen (18) years of age, at the time of the commission of the offense, had acted with discernment, and the maximum penalty imposed by law for the offense with which the child in conflict with the law is charged is imprisonment of not more than twelve (12) years, regardless of the fine, or fine alone regardless of the amount, and before arraignment of the child in conflict with the law, the Court shall, pursuant to the Supreme Court Revised Rule on Children in Conflict with the Law, determine whether or not diversion is appropriate. Custody of CICL Pending Trial Where a child is detained, the Court shall order the following: (1) Release of the minor on recognizance to his or her parents, and other suitable persons; (2) Release of the child in conflict with the law on bail; or (3) Transfer of the minor to a Youth Detention Home or a Youth Rehabilitation Center. No Detention in a Jail Pending Trial  The Court shall not order the detention of a child in a jail, pending trial or hearing of the case. Whenever commitment is necessary, a child shall be committed to the “Bahay Pag- asa” in the province, city or municipality, where the child resides. In the absence of a “Bahay Pag-asa,” the child in conflict with the law may be committed to the care of the DSWD or a licensed and/or accredited NGOs, within the jurisdiction of the Court. The center or agency concerned shall be responsible for the child’s appearance in Court, whenever required. - A CICL who reaches the age of eighteen (18) years while in the custody of an institution 40 for the youth, during the pendency of the criminal case, shall not be transferred to a jail 41 for adults. Automatic Suspension of Sentence - If the CICL was under eighteen (18) years of age at the time of the commission of the offense, and was found guilty of the offense charged, the Court shall determine and ascertain any civil liability of the parents, which may have resulted from the offense committed. However, instead of pronouncing the judgment of conviction, the Court shall place the child in conflict with the law under a suspended sentence, without need of application; Provided, however, That suspension of sentence shall still be applied or shall still be available, even if the CICL is already eighteen years (18) of age, until the CICL reaches twenty-one (21) years of age at the time of the pronouncement of guilt. Discharge of the Child in Conflict with the Law - Upon the recommendation of the Social Worker who has custody of the child, the Court shall dismiss the case against the child whose sentence has been suspended and against whom disposition measures have been issued, and shall order the final discharge of the child, if it finds that the objective of the disposition measures have been fulfilled. The discharge of the child in conflict with the law shall not affect the civil liability resulting from the commission of the offense, which shall be enforced in accordance with law. Return of the Child in Conflict with the Law to the Court - If the Court finds that the objective of the disposition measures imposed upon the child in conflict with the law has not been fulfilled, or if the child in conflict with the law has willfully failed to comply with the conditions of the disposition or rehabilitation program, the child in conflict with the law shall be brought before the Court for the Execution of Judgment. If the said child in conflict with the law has reached eighteen (18) years of age, while under suspended sentence, the Court shall determine whether to discharge the child in accordance with this Act, to order the Execution of Sentence, or to extend the suspended sentence for a certain specified period, or until the child reaches the maximum age of twenty-one (21) years. An Agricamp is where children convicted of a criminal offense will serve his or her sentence instead of confinement in a regular penal institution. Existing Agricultural Camps for CICL 1. Inagawan Sub-Colony in Puerto Princesa City, Palawan. _ Ongoing construction 2. Sowing Seeds of Hope Through Sustainable Farming, Pampanga State Agricultural University Proposed: 1. Camp Montible, Iwahig Prison and Penal Farm (IPPF), Can a CICL be held guilty of Perjury and Liability for Concealment or Misrepresentation? Ans. NO. A child shall not be held, under any provision of law, to be guilty of perjury, concealment, or misrepresentation because of failure to acknowledge the case, or recite any fact related thereto, in response to any inquiry directed to the person for any purpose. Roles of the Different Sectors in the Community 1. Family shall be responsible for the primary nurturing and rearing of children, which are critical in delinquency prevention. As far as practicable, and in accordance with the procedures of the Act, as amended, a child in conflict with the law shall stay and be maintained with the child’s family. 2. Education System – contribute in juvenile intervention and delinquency prevention, through the following: (1) Work together with families, community organizations and agencies in the prevention of juvenile delinquency, and in the rehabilitation and reintegration of children in conflict with the law. (2) Provide adequate, necessary and individualized educational schemes for children who are manifesting difficult behavior, children-at-risk and children in conflict with the law. (3) In cases where children in conflict with the law are taken into custody or placed in a “Bahay Pag-asa” and youth rehabilitation centers, provide the opportunity to continue their learning under an alternative learning system with basic literacy program or non- formal education accreditation equivalency system. All government and private educational institutions, which accept children as pupils or 9 students, shall: (1) Establish a committee that shall handle cases involving CICL; (2) Develop primary and secondary intervention programs for CAR; (3) Participate in the implementation of tertiary intervention programs for CICL; and (4) Train school personnel with regard to juvenile and restorative justice. Note: The DepEd and the CHED shall issue the appropriate guidelines for the proper implementation of this rule. 4. Mass Media - The promotion of child rights and 18 delinquency prevention by relaying consistent messages through a balanced approach. - Media practitioners shall maintain the highest professional standards in reporting and 20 covering cases of children in conflict with the law. - In all news and publicity materials concerning children, the best interest of the child and the child’s right to privacy and confidentiality should be the primordial, paramount and overriding consideration. Any undue, inappropriate and sensationalized publicity of any case involving a child in conflict with the law or a child-at-risk is hereby declared a violation of the child’s rights. Media practitioners shall not disclose any information that may reasonably identify the child or will lead to the identification of the child. 5. Local councils for the Protection of Children (1) Serve as the coordinating body that will support the concerned LGU for the adoption, implementation, assessment, monitoring and evaluation of the Comprehensive Juvenile Intervention Program. (2) Coordinate with, and assist, the Sangguniang Kabataan (SK) and youth organizations, in the formulation and implementation of juvenile intervention and diversion programs in the community, in accordance with the Youth-to-Youth Guidelines promulgated by the NYC and approved by the JJWC; (3) Provide coordinative linkages with other agencies and institutions in the planning, monitoring, and evaluation of juvenile intervention and diversion programs in the community; (4) Assist the Punong Barangay in conducting diversion proceedings in cases ‘ (5) Support the Local Social Welfare and Development Officer (LSWDO) in the development of the appropriate diversion programs. (6) Initiate, in collaboration with the schools, youth organizations and other concerned agencies, the community-based programs on juvenile justice and welfare, in accordance with the Youth-to-Youth Guidelines promulgated by the NYC and approved by the JJWC; (7) Conduct capability-building programs to enhance the knowledge and skills of LCPC members in handling children’s programs; and (8) Document best practices on juvenile intervention and delinquency prevention. - In all news and publicity materials concerning children, the best interest of the child and the child’s right to privacy and confidentiality should be the primordial, paramount and overriding consideration. Any undue, inappropriate and sensationalized publicity of any case involving a child in conflict with the law or a child-at-risk is hereby declared a violation of the child’s rights. Media practitioners shall not disclose any information that may reasonably identify the child or will lead to the identification of the child.