Members of Parliament’s joint select committee reviewing the Child Diversion Act have agreed to remove Section 13 of the legislation, which currently limits a child’s eligibility for participation in a diversion programme to three referrals or if the child commits another offence within three years of entering a programme.

The decision follows a review of data showing that repeat referrals are relatively uncommon and that, in most of the cases identified, children who returned to the programme either successfully completed it or were still participating.

During a sitting of the committee on Wednesday, director of Child Diversion Branch at the Ministry of Justice Venisa Clarke told the committee that up to the end of the last fiscal year, 29 of 2,966 children had been referred to a diversion programme more than once.

She said a cursory review of those 29 cases found that most were either successful or ongoing, while four had returned to the system after failing to complete the programme, or for another reason.

That information helped strengthen the argument that the law should not set a fixed ceiling on the number of opportunities available to a child.

Committee Chairman Delroy Chuck said the figures suggested that children who were referred a second time were, in most cases, benefiting from the intervention.

“We are saying even where they recur, which is, less than two per cent, the child seemed to benefit from the second referral,” said Chuck as he argued that children could benefit from the diversion programme even after a fourth, or fifth referral.

He further explained that children between 12 and 17 years old could encounter difficulties at different stages of their adolescence and should not necessarily be forced into the formal court process simply because they had reached the statutory limit on referrals.

“But the point I’m really making…is that we can’t give up on the children. Now, the only restriction, what could happen, by the way, is that if the child is referred again to the Child Diversion Committee, and the child or the Child Diversion Committee feels that they can’t benefit anymore from the programme, then other additional or alternative means would be found.

“But at the end of the day, it means that if a child is to be referred a fourth and fifth time, that is a troubled child and therefore, we shouldn’t just say no… Let’s look at the circumstances and see to what extent that child can be helped. Because at 17, they are no longer eligible. But we’re looking at a child from 12, they could be troubled at 12, 13, 14, 15, and need all the guidance that they can get. So I’m saying that Section 13 restricts the matter, and that’s why I say maybe we could consider removing it,” added Chuck.

Under the existing Section 13 of the legislation, a child can lose eligibility to continue in, or participate in a diversion programme, if the child commits or attempts to commit another diversion offence or any other offence within three years after the commencement of a diversion programme. The section also says a child is not eligible for participation after three referrals.

A screen grab of Opposition Spokesperson on Youth and Human Rights Isat Buchanan speaking during Wednesday’s Joint Select Committee sitting at Gordon House, Kingston, where the committee continued its review of the Child Diversion Act.

During the committee’s discussion, members raised questions about whether those restrictions were necessary when the system already involves decisions at several stages about whether a child is suitable for diversion.

Opposition spokesperson on youth and human rights Isat Buchanan strongly supported removing the restriction.

He argued that the people working directly with children, including diversion committees, local committees and mentors, are better placed to assess whether another intervention could help than a fixed statutory limit.

“To set limits would pretty much be offensive to the best interests of the children principle because we are trying to change conduct while they are juveniles and while they have access to the diversion programmes. No child should be considered lost or redeemable,” he argued.

Buchanan’s position was also reflected in the committee’s discussion about the ages at which children might come into contact with the law. Members noted that a child could receive a first referral at 12 or 13, another at 14 and another at 15, potentially reaching the three-referral limit while still only 15 or 16.

There was, however, recognition that repeated offending could eventually require a different response.

Member of Parliament for Kingston Central Donovan Williams questioned where the line should be drawn if access to diversion was left open-ended. Williams also questioned when the behaviour of a child becomes sufficiently habitual or serious for court intervention to become necessary.

The committee’s response was that removing Section 13 would not eliminate those safeguards.

Ministry of Justice officials pointed committee members to Section 19 of the legislation, which deals with a child who fails to comply with a diversion programme.

Under that section, where a child does not comply, the matter can be returned for further action. In a court-referred case, the court can inquire into the failure, modify the programme, send the child back to diversion or proceed with the charge. Even after a programme is modified, the court retains discretion to give the child another opportunity.

The committee also discussed amendments to reflect a separate proposal that would allow the director of public prosecutions to refer children to diversion without requiring them to first appear in court. That would require changes to Section 19 of the Act so that prosecutors could receive updates on a child’s progress and, where necessary, require the matter to return to court.