DOI: 10.5553/BSb/266669012020001001008

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Juvenile Justice in the Caribbean Netherlands: Important considerations from a Children’s Rights Perspective

Trefwoorden UNICEF Situation Analysis, Caribbean Netherlands, Children’s Rights, Juvenile Justice
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L. (La-Toya) Charles MSc., 'Juvenile Justice in the Caribbean Netherlands: Important considerations from a Children’s Rights Perspective', Boom Strafblad 2020-1, p. 42-49

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    • 1. Introduction

      The Convention on the Rights of the Child (CRC) came into force on 8 March 1995 for the European Netherlands and on 16 January 1998 for the former Netherlands Antilles. Unless denounced, the treaties of the Netherlands Antilles, including the CRC, remained in force in the Caribbean Netherlands after the dissolution of the Netherlands Antilles on October 10th, 2010. As such, the Convention remains directly and fully applicable to children on the islands of Bonaire, St. Eustatius and Saba, as well as to children on Curacao, Aruba, and St. Maarten. Due to the dissolution of the Netherlands Antilles, and the subsequent administrative transition of Bonaire, St. Eustatius and Saba to public entities of the Netherlands, the Government of the Netherlands became the primary duty bearer for the implementation of the Convention on the Rights of the Child on these three islands as per October 10th, 2010.1x In broad terms, the position of the public entities is similar to that of Dutch municipalities, with adjustments for their size, distance from the European part of the Netherlands and geographic location in the Caribbean region. The powers of governance in the Caribbean Netherlands are distributed between local island governments and the Dutch national government.

      By ratifying the CRC, States commit to undertaking ‘all appropriate legislative, administrative and other measures’ for the full realization of the rights it contains (art. 4). Article 40.3 of the CRC admonishes that ‘States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law.’ The Caribbean Netherlands islands are subject to a separate criminal law to that of the Netherlands. In contrast to the Penal Code for the European Netherlands, in the code for the Caribbean Netherlands, the separate juvenile criminal law has not yet entered into force. The Dutch Government has expressed intentions to administer the juvenile justice part of the law in 2020, after a postponed implementation initially announced for the autumn of 2019.2x A General Administrative Measure (AMvB) is being prepared to implement article 79e, first paragraph, 79o and 79v, second paragraph, of the BES Criminal Code which is the juvenile criminal law. See Kamerstukken II 31959, Stb. 2010, 350.

      The following discussion will, from a children’s rights perspective, give some important considerations for the implementation of the juvenile justice law on the islands; the focus will rest on the rights of children while in the child justice system and the Government’s obligation to prevent children from entering into the system.3x Consistent with the recently issued General Comment No. 24 on children’s rights in the child justice system, the term ‘child justice’ will replace the term ‘juvenile justice’ when referring to the system. See General Comment No. 24 on children’s rights in the child justice system (18 September 2019), UN Doc CRC/C/GC/24. The discussion hinges on the findings of UNICEF the Netherlands’ recently published Situation Analysis on the rights of children and adolescents in the Caribbean.4x UNICEF Nederland, Situation Analysis: Children and Adolescents in the Caribbean Netherlands, The Hague: UNICEF Nederland 2019.

      In section 2.1, we present the state of childhood delinquency on the islands followed by an account of how juvenile offences are currently handled in the absence of a juvenile justice law in section 2.2 and a brief outline of the Dutch government’s intentions to implement a juvenile justice law for the islands in section 2.3. Then, we elucidate important considerations that must be taken into account when implementing a juvenile justice law in the Caribbean Netherlands; namely, the pedagogical approach in section 3.1, detention conditions in section 3.2, and contact with family in section 3.3. In section 4.1, we continue with a description of the risks and vulnerabilities that children face on the islands that may lead to criminality, and in section 4.2, we stress the corresponding need for the Dutch government and public entities to collaborate on preventative measures. In section 5, we look at the need to monitor and evaluate the implementation of the juvenile justice law and preventive measures in light of the Dutch government’s intentions to introduce a monitor and the recently conducted juvenile justice baseline study.

    • 2. Juvenile crime and juvenile justice in the Caribbean Netherlands

      2.1. Juvenile delinquency on the islands

      In 2019, the population of children 12 up to and including 17 years old was 1713; 1350 on Bonaire, 245 on St. Eustatius, and 118 on Saba.5x Central Bureau of Statistics, 2019. An integrated system for collecting and managing data in general and, specifically on children in contact with the child justice system is lacking on Bonaire, St. Eustatius, and Saba. Similarly, a clear indication of children at risk of entering into the system is also absent as there is no single entity systematically collecting or consolidating this data. These were shortcomings mentioned in the 2013 situation analyses and repeated in the follow-up study published in 2019.6x See : Kloosterboer, Kind op Bonaire, St. Eustatius, en Saba: Kinderrechten in Caribisch Nederland, Samenvatting, Voorburg: UNICEF Nederland 2013. UNICEF Nederland 2019. In the last publicly available Annual Report from the Public Prosecution Office BES from 2016, 34 minors were reported in their registration system, 18 on Bonaire and 16 on St. Eustatius. The year before there were 8 minors registered in their system for all three islands.7x Openbaar Ministerie Bonaire, St. Eustatius & Saba, Jaarverslag 2016, Bonaire: Openbaar Ministerie Bonaire, Sint Eustatius en Saba 2017, p. 7. The increase from one year to the next was explained by improvements in the response to juvenile offences and the way these were being handled.

      One report noted that the number of incidents with a juvenile suspect in the Caribbean Netherlands in 2013 and 2014, registered by the Police Force Caribbean Netherlands, only amounted to about 3 percent of the total number of registered incidents, compared to 8 percent in 2013 in the European Netherlands.8x E.C. Leertouwer & A. Zaalberg, ‘Achtergronden van de detentieratio in Caribisch Nederland’, Den Haag: WODC 2015, p. 46. The same report also noted that the share of youth cases at the Public Prosecution Service at the BES was over 9 percent at that time, which was roughly the same as the share of youth cases in the European Netherlands. However, data published at the Public Prosecution Office presents an incomplete picture of juvenile offences for different reasons including that juveniles only enter into their system for more severe or repeated offences. Table 1. below gives an overview of juvenile crime cases handled by the Guardianship Council.9x The role and responsibilities of the Guardianship Council with regard to juvenile cases are briefly described in section 2.2 and comparable to those of the ‘Raad voor de Kinderbescherming’ in the Netherlands. Guardianship Council translates to Voogdijraad in Dutch. This department falls under the management of the Ministry of Justice & Security (J&V). Differentiated data between the islands was not provided. It is not entirely clear how data available at the Police Department, Public Prosecution Office, and the Guardianship Council relate to each other.

      Tabel 1 Juvenile crime in the Caribbean Netherlands: cases processed from 2013 to 2018 by the Guardianship Council
      201320142015201620172018
      Hearing advice for juvenile criminal matters 8 19 11 6 12 11
      Coordination of community service 12 10 12 9 2 8
      HALT programme cases 26 22 7 1 8 24
      Supervision of juvenile rehabilitation 15 8 5 5 7 2
      Total 61 59 35 21 29 45

      Source: the Guardianship Council BES, 2019

      Given the larger population size, juvenile crime appears to pose more of an issue on Bonaire. Situation Analysis (SitAn) respondents within the justice system on Bonaire noted an increase in the number of children who come into contact with the law.10x SitAn refers to the 2019 Situation Analysis of UNICEF the Netherlands. This abbreviation will be used throughout the rest of the article. Similar to previous research published about the island, anecdotal evidence echoed a rise in the use of alcohol and drugs, aggression, behavioural problems, truancy, theft, vandalism, and gang involvement among young people on the island.11x See S. van der Zee & D. Hoebé, Veiligheidsbeleid BES 2018, Een onderzoek naar praktische handvatten om criminaliteit en onveiligheid op Bonaire, Sint Eustatius en Saba aan te pakken, Bonaire: Openbaar Ministerie Bonaire, Sint Eustatius en Saba 2019, p. 42.

      The Police and Probation Officers on St. Eustatius and Saba responded that they had received ‘few’ cases involving minors within the past two years. Early during the 2019 SitAn field exercises and data collection phase in November 2018 and February 2019, SitAn respondents on St. Eustatius noted an issue with serious fights at schools. However, later, during the data validation stage in April and June 2019, professionals noted that fights at schools had become less over the years for different reasons and that the use of drugs among young people was a rising issue. On Saba, SitAn respondents referred to a small group of difficult to reach children who could often be found loitering and involved in fights, drug use, and vandalism.
      Confirmation of these anecdotal accounts and the extent of the issues is not possible without comprehensive data about behaviours and attitudes among young people on the islands.

      2.2. How juvenile offences are currently handled in the absence of a juvenile justice law

      Under current legislation regulated by the BES Criminal Code, it is possible to apply adult criminal law (and thus imprisonment) to cases of 16 and 17-year old’s and a life sentence can also be imposed; no criminal law currently applies to children 15 years and younger.12x BES refers to Bonaire, St. Eustatius, and Saba. However, since 2010, the services in the justice chain have been working together on the basis of a covenant to deal with juvenile criminal cases which are discussed in regular juvenile case consultations.13x JCO Jeugd or Justitieel Casusoverleg Jeugd in Dutch. By means of the covenant, the main penalties that may currently be imposed on minors are fines, reprimands, and community service and guidance. Minor cases are handled directly by the Guardianship Council and are often referred for extrajudicial settlements whereby the child may be exempted from a criminal record.

      The Guardianship Council has a key role in the child justice system on the islands; children in contact with the law must be reported to the Guardianship Council which then conducts investigations into the situation of the child and prepares an advice or plan on the appropriate intervention. The records of the Guardianship Council’s executed tasks, displayed in table 1., i.e. the number of cases processed for advice on hearings, coordination of community service and supervision of juvenile rehabilitation, or admitted to the HALT (The Alternative) program, illustrate the effort to employ diversion processes and programs to divert juveniles in contact with the law from the courts and settle on measures that avoid police records. The Guardianship Council works closely with Youth Care and Family Supervision Caribbean Netherlands which becomes involved during the resocialization process of the child by providing counseling and guidance.14x Youth Care and Family Supervision translates to Jeugdzorg en Gezinsvoogdij (JGCN) in Dutch. This department falls under the management of the Ministry of Public Health, Welfare & Sport (VWS). Within the Police Force Caribbean Netherlands there is a Youth and Moral Affairs Department specialized in handling criminal cases committed by and against children. A Public Prosecutor specifically focusing on youth cases, among others, was appointed at the Public Prosecution’s Office in 2019. A rotation system is in place for judges on the Dutch Caribbean islands. It is unclear whether these judges are specialized in handling criminal cases involving children. The judges have been reported to handle cases involving children differently.

      Underreporting of juvenile crimes is reportedly an issue in the Caribbean Netherlands as it is suspected that in the absence of a criminal code for juveniles, few people understand that minors can actually be punished and therefore don’t bother to report. Also, the line between ‘mischief’ and a criminal offence is blurred when it comes to juveniles. Parents and some authorities choose to ‘settle’ juvenile matters among themselves as opposed to reporting and processing through the system. Locals also fear that if they report, the child may be taken away. In the event of more serious offences, cases are referred to the Public Prosecution Office, and only the most severe cases are taken to court. 16 and 17 year old children who receive a jail sentence, in accordance with adult criminal law, are imprisoned in Bonaire. In exceptional cases, children are imprisoned in the Netherlands and Curacao due to capacity shortages on Bonaire or necessary medical treatment not available on Bonaire. The countries within the Dutch Kingdom have a mutual agreement regulating such arrangements.15x See ‘Onderlinge regeling als bedoeld in artikel 38, van het Statuut voor het Koninkrijk der Nederlanden regelende de samenwerking tussen Nederland, Aruba, Curaçao en Sint Maarten op het gebied van de onderlinge beschikbaarstelling van detentiecapaciteit op medische gronden of in verband met dringende redenen van veiligheid’. Figures were not readily available to indicate how often or how many children from the Caribbean Netherlands have been detained in Bonaire or other countries within the Dutch Kingdom in recent years.

      Another important right of children in conflict with the law is the right to free legal consultation (CRC art. 40). In the Caribbean there is legislation for free legal assistance for people who meet the criteria, in particular, those earning less than the minimum wage. This also applies to situations that concern children. For criminal cases in particular, there are always free lawyers provided, this also applies for children.

      2.3. Plans to implement a juvenile justice law

      The Minister of Legal Protection has indicated, ‘that the current set of instruments, fall short in making a difference and preventing young people from [continuing to commit offenses].’16x Kamerstukken II 2018/19, 31568, 209. The non-binding nature of the interventions do not deter juveniles from future delinquency or encourage them to change their behaviors. When this pattern remains unaddressed, juveniles risk entering into the system later in life as adults. As such, a juvenile criminal law for the Caribbean Netherlands is scheduled to be implemented later in 2020. Clauses for children were adopted in the BES Criminal Code since 2010 but were not executed due to a lack of provisions; these clauses are based on the Criminal Code of the former Netherlands Antilles. The Minister of Legal Protection has stated that the provisions are similar but not equal to the juvenile criminal law in the European-Netherlands as full uniformity is not appropriate because of the small scale and the limited facilities available on the islands.

      The law will apply to children 12 to 18 with the minimum age of criminal responsibility (MACR) set at 12. In the event of grave charges, the law will still allow the application of adult penal law to children 16 and 17 years old. The child justice system is intended to have a pedagogical character where the interests of the child and protection are the main priorities. The prevention of recidivism will also be important as well as improving the upbringing of young persons. The law will provide a legal basis for the provisions already in place such as the extrajudicial settlement and by attaching special conditions to conditional sentences, community service and the acceptance of guidance will become obligatory. With the implementation of the law juvenile detention will be introduced. It is at this point still unclear whether pre-trial detention will also be introduced; possibilities and implications are still currently being explored. When detained, children will be placed in the recently opened Judicial Institution Caribbean Netherlands located on Bonaire, in a special department separated from adult prisoners.17x Kamerstukken II 2018/19, 31568, 209.

      Preparations for the system have included a new division of tasks with regard to youth rehabilitation shared between the Guardianship Council, Youth Care and Family Guardianship, and the Probation Office. The Guardianship Council maintains an advisory role and responsibility for executing Halt extrajudicial settlements for which the working methods have been strengthened and will include restorative justice elements. Youth Care and Family Guardianship maintains the counseling and guidance role. Supervision of the guidance process and responsibility for community service will be transferred from the Guardianship Council to the Probation Office. The three organizations have received training juvenile rehabilitation. Apart from the youth specialists already in place at the Police Department and Public Prosecution Office, there are currently no plans to further expand on this level of specialized capacity.

    • 3. Important considerations: when juveniles are in the justice system

      3.1. Pedagogical approach

      Pursuant to stipulations outlined in the CRC articles 37 and 40 and further elucidated in General Comment No. 24, a pedagogical approach forms the foundation of a juvenile justice system; all provisions in the system must depart from this basis. A child in conflict with the law has a right to a pedagogical approach. Particular emphasis is placed on the child’s right to be treated with humanity and dignity and in a manner appropriate to the child’s age and in consideration of their corresponding needs (art. 37(c)). Of utmost importance is the right of the child to receive treatment that promotes their reintegration into society and their second chance to assume a constructive role with reinforced respect for the human and fundamental freedoms of others (art. 40.1). General Comment No. 24 paragraph 2 stresses the need for children to be protected from harm while in the criminal justice system, their lesser culpability compared to adults due to their physical and psychological development, and their corresponding need for a differentiated and individualized approach. Systems adopting these principles also serve to prevent recidivism.18x General comment No. 24, UN Doc CRC/C/GC/24, para 24.3.

      3.1.1. Rehabilitation in the Caribbean context

      We acknowledge the Minister of Legal Protection’s commitment to adopt a pedagogical approach for the child justice system in the Caribbean Netherlands. This approach is particularly important and relevant in the Caribbean Netherlands context where communities are often inclined to punish and discipline children when they ‘misbehave’ without fully recognizing certain factors that influence a child’s development and behavior. Cipriani points out ‘a common weakness in welfare and justice approaches that see delinquency as a question of individual children, in isolation from the obligations and consequences of broader society and structural factors.’19x D. Cipriani, Children’s Rights and the Minimum Age of Criminal Responsibility: A Global Perspective, New York: Routledge 2009, p. 37. Some of such factors relevant to the Caribbean Netherlands are discussed in section 4.1. This makes it important for sufficient specialized professionals to be in place and to receive adequate ‘systematic’ and ‘ongoing’ training that should include information on social and other causes of juvenile delinquency within their society.20x General comment No. 24, UN Doc CRC/C/GC/24, para 112. Other research has reported respondents indicating that children often return from detention more damaged than when they left and others feeling that children do not experience their time in jail as punishment receiving three meals a day which many children outside of the system do not receive.21x Raad voor de Rechtshandhaving, Preventie van Jeugd Criminaliteit in Bonaire, St. Eustatius en Saba, Raad voor de Rechtshandhaving 2016, p. 31. This highlights the need for the Dutch Government to also sensitize and raise awareness among the broader communities within the islands about children’s rights to proper treatment and the importance of their rehabilitation.22x General comment No. 24, UN Doc CRC/C/GC/24, para 111.

      3.1.2. Age of criminal responsibility

      With regard to treatment appropriate to a child’s age, the CRC specifically prescribes the establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law. The most common minimum age of criminal responsibility (MACR) internationally is 14. The Committee on the Rights of the Child encourages States parties to increase the MACR to 14 in consideration of recent scientific findings regarding child development.23x See General comment No. 24 on children’s rights in the child justice system (18 September 2019), UN Doc CRC/C/GC/24, para 21 and 22. The Dutch Government has not adopted this approach for the Caribbean Netherlands juvenile justice law.24x The Council for the Application of Criminal Justice and Youth Protection has advised for the MACR in the Netherlands to be increased to 14; the Dutch government has not adopted this advice. See Raad voor Strafrechtstoepassing en Jeugdbescherming, Verhoging strafrechtelijke minimumleeftijd in context : Advies over verhoging van de strafrechtelijke minimumleeftijd en het belang van goede jeugdhulp, The Hague: Raad voor Strafrechtstoepassing en Jeugdbescherming 2017. Additionally, the Kingdom of the Netherlands accepted the provisions of art. 37(c) of the CRC with the reservation that these provisions shall not prevent: i) the application of adult penal law to children of 16 years and older; and, ii) a child, which has been detained will not always be accommodated separately from adults. These reservations have repeatedly come under scrutiny by human rights institutions in the Netherlands, including the Children’s Rights Ombudsman. Moreover, the Children’s Rights Committee has strongly urged the Dutch government to ‘further amend the laws related to the juvenile justice system in order to ensure that all children below the age of 18 years are treated under the juvenile justice laws irrespective of the gravity of the charges pressed upon them.’25x Concluding observations on the fourth periodic report of the Netherlands (8 June 2015), UN Doc CRC/C/NDL/4, para 59(a).

      3.2. Detention

      Consistent with art. 40.3(b), the Minister maintains that ‘deprivation of liberty must be a means for young people that is used only in the most extreme case and for the shortest possible duration.’26x Kamerstukken II 2018/19, 31568, 209. With that said, when detained, juveniles will nevertheless be placed in the recently opened Judicial Institution Caribbean Netherlands where adults are also held, albeit in a department designated for children. While the ministry is exploring pedagogical interpretations of youth detention, housing child detainees in an adult facility is in stark conflict with the conditions of the CRC. Art. 37(c) specifically states that every child deprived of liberty shall be separated from adults. General Comment No. 24 paragraph 92 further specifies that ‘a child deprived of his/her liberty shall not be placed in an adult prison or other facility for adults [citing] abundant evidence that the placement of children in adult prisons or jails compromises their basic safety, well-being, and their future ability to remain free of crime and to reintegrate.’ Reasons provided by the Dutch Government for this seemingly controversial detention arrangement for children in the Caribbean Netherlands are the small scale and the limited facilities available on the islands.27x This reasoning was rejected by the House of Representatives when handling the approval of the CRC; in the Netherlands, this is only allowed if a child is detained under adult criminal law and not because there is a shortage of capacity. See Kamerstukken II 1992/93, 22855 (R 1451), 4, p. 20-22. See also: G.C.A.M. Ruitenberg, De doorwerking van het VN-Verdrag inzake de Rechten van het Kind in de Nederlandse Rechtspraak, WODC: Den Haag 2003. While the CRC allows for exceptions to this condition in the event that holding a child in an adult facility proves to be in the child’s best interest, General Comment No. 24 paragraph 92 further specifies that ‘the child’s best interests does not mean for the convenience of the States parties. States parties should establish separate facilities for children deprived of their liberty, which include distinct, child-centered staff, personnel, policies and practices.’

      3.3. Contact with family

      Additionally problematic about the Dutch government’s child detention arrangement for the Caribbean Netherlands is the fact that the Judicial Institution Caribbean Netherlands is located on Bonaire. This implies that detained children from St. Eustatius and Saba will be removed from the proximity of their parents. Art. 37(c) specifies that children have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances. General Comment No. 24 paragraph 94 further specifies that ‘in order to facilitate visits, the child should be placed in a facility that is as close as possible to the place of residence of his/her family.’ In the case of detained children from St. Eustatius and Saba, the closest juvenile facility within the Kingdom of the Netherlands is the Miss Lalie Center on St. Maarten. While St. Maarten is an autonomous country within the Kingdom, if provisions to detain children from St. Eustatius and Saba on their respective islands proves to be unfeasible, all options considered, then the best interest of the child and closest alignment to the conditions of the CRC would be to explore cooperation arrangements with the Government of St. Maarten and management of the Miss Lalie Center to have the children detained there in order to ensure more regular contact with their family. It would of course also be important for the Dutch Government to consider St. Maarten’s legislation with regard to children in detention, particularly regarding treatment, training of professionals, and rehabilitation. It would also be important for the Dutch Government to continuously cooperate closely with the Government of St. Maarten and the Miss Lalie Center to ensure and regularly monitor the quality of the facility and pedagogical treatment provided. Show more

    • 4. Important considerations: Before juveniles enter the system

      In this section, we look at social factors specific to the Caribbean Netherlands context that make taking a strong preventative approach to juvenile crime paramount. We then emphasize the need for those responsible on both the national and local levels to work together to make preventative measures work.

      4.1. Risks & Vulnerabilities

      General Comment No. 24 paragraph 9 calls for a comprehensive policy for juvenile justice with prevention of juvenile delinquency as one of its core elements. The Minister of Legal Protection has emphasized that the most important thing is to prevent young people from entering the juvenile criminal justice system. The focus on prevention becomes evident when examining the risks and vulnerabilities of children within the social environment of the Caribbean Netherlands and also from the perspective of the broader Caribbean regional context. The need to strengthen preventative approaches is also particularly relevant for the three islands considering that many of the risks and vulnerabilities identified during the situation analysis conducted in 2019 were the same as highlighted in 2013, some of which are listed below, and others including drug and alcohol addiction within households and the lack of recreational activities for youth to develop their talents. The more risk factors a child or adolescent experiences, the higher their risk for delinquent behavior.28x National Research Council and Institute of Medicine. Juvenile Crime, Juvenile Justice. Washington, DC: The National Academies Press 2001, p. 66.

      4.1.1. Domestic violence & child abuse

      Research conducted by Debowska et. al. in the Eastern Caribbean region concluded that youth who reported having experienced high/moderate levels of various forms of violence were significantly more likely to engage in violent and hostile behavior.29x A. Debowska, D. Boduszek, N. Sherretts, D, Willmott & A. Jones, ‘Profiles and behavioral consequences of child abuse among adolescent girls and boys from Barbados and Grenada. Child Abuse and Neglect’, Child Abuse & Neglect 2018/79, p. 245-258. Domestic violence and abuse pose significant threats to women and children in the Caribbean Netherlands. The 2013 situation analyses, and later reports, showed that considerable improvement was required on Bonaire, St. Eustatius, and Saba to make it possible for children to grow up in a safe, nurturing, and protective environment.30x Kloosterboer 2013. J. de Bruijn, F. Kriek & K. de Vaan, De Aanpak van Huiselijk Geweld op de BES-eilanden. Amsterdam: Regioplan 2014. R. Bijl & E. Pommer, Five years of the Caribbean Netherlands: Impact on the population. The Hague: The Netherlands Institute for Social Research 2015. Van der Zee & Hoebé 2019. Responses from interviews, focus groups, and consultation workshops for the 2019 SitAn also indicated that the issues, including child sexual abuse, corporal punishment, and parent-child communication, remain serious.

      4.1.2. Behavioral problems & early intervention

      The social behavior characteristics that best predict delinquent behavior are physical aggression and oppositionality; children who show few prosocial behaviors toward peers are at high risk of eventually getting involved in serious delinquency.31x National Research Council and Institute of Medicine 2001, p. 71. The 2019 SitAn draws attention to the confusion among families, communities and teachers between children with potentially undetected disabilities and behavioral problems, which sometimes results in delayed interventions. The inability of schools to handle behavioral problems was also addressed in the 2013 Situation Analysis. The 2018 Caribbean Netherlands Safety Image reported that teachers often do not know where to turn regarding their students with behavioral problems, and that these children often end up out of school, particularly on Bonaire.32x Van der Zee & Hoebé 2019. Notably, while the dropout rate has decreased on St. Eustatius and particularly on Saba, due to the lack of a functioning compulsory education registration system, there is little insight into the number of dropouts on Bonaire.

      4.1.3. Vulnerable households

      Research shows that economic conditions rather than family composition influenced children’s delinquency.33x National Research Council and Institute of Medicine 2001, p. 76. However, children in single-parent families are more likely to be exposed to other criminogenic influences. Single parents also often find it hard to get assistance. If they must work to support themselves and their families, they are likely to have difficulty providing supervision for their children. The effects of living with a single parent vary with the amount of supervision provided by parents, as well as the emotional and economic resources that the parent is able to bring to the situation.34x National Research Council and Institute of Medicine 2001, p. 77. In the Caribbean Netherlands, 29 per cent of children live with one of their parents, in the European Netherlands this is 22 per cent.35x Central Bureau of Statistics 2018. The labor participation rates among single parents on the three islands are higher than the rates for two-parent households. Comparatively, single parents in the European Netherlands have a lower labor participation rate than two-parent households. While we can assume, it cannot be stated with certainty whether children in one-parent households on the three islands might be receiving less parental care and supervision than their peers in two-parent households. Despite their higher rate of labor participation, however, single-parent households have very low standardized income or purchasing power. Children in a single-parent family [therefore] live at a lower level of prosperity than children in a two-parent family.36x Central Bureau of Statistics, Jaarrapport 2017 Landelijke Jeugd Monitor, Den Haag: Centraal Bureau voor de Statistiek 2017, p. 156.

      4.2. Collaboration & coordination

      The Committee on the Rights of the Child ascertains that effective implementation of the Convention requires visible cross-sectoral coordination to recognize and realize children’s rights across Government, between different levels of government and between Government and civil society – including in particular children and young people themselves.37x General Comment No. 5: General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6) (27 November 2003), UN Doc CRC/GC/2003/5, para 27. Given the cross-sectoral risk factors for children in the Caribbean Netherlands listed above, the need for collaboration between actors to prevent juvenile delinquency is evident. The Minister of Legal Protection appears to share this view stating the importance that ‘in adjacent policy areas, continuous efforts are made for a positive and safe development of young people in the Caribbean Netherlands and expressing intentions to continue to contribute to the interdepartmental approach to the youth theme under the coordination of the Ministry of the Interior and Kingdom Relations.’38x Kamerstukken II 2018/19, 31568, 209. However, the 2019 Situation Analysis identified the need for more ministerial cooperation and coordination not only between ministries but also between ministries and public entities. This is particularly important as it relates to a common policy on the prevention of juvenile delinquency and corresponding working agreements between chain partners including those outside of the justice system.

      The public entities of Bonaire, St. Eustatius and Saba are working on comprehensive youth policies for each island. These are designed to invest as much as possible in the preventative side of, among others, the youth care system. Bonaire was drafting its youth policy at the time of the field missions for the 2019 SitAn. On Saba and St. Eustatius, first meetings with stakeholders have been organized. Responsibility for youth crime prevention and coordination of prevention efforts does not yet have a legal basis. However, consistent with the division of tasks and responsibilities with regard to youth care, stakeholders in the justice chain see youth crime prevention as a public entity task; general preventive safety policy is already a public entity task. The other tasks relevant to juvenile delinquency (juvenile rehabilitation, juvenile criminal law, police and the Public Prosecution Service) are national government tasks.39x IdeeVersa, Interdepartementale Samenwerking Caribisch Nederland bij het thema jeugd, Den Haag: IdeeVersa 2019. Given developments surrounding implementation of the juvenile justice law, it will be important for the national government to support the public entities with further development and implementation of their local integrated youth policies particularly as it relates to the prevention of juvenile delinquency and addressing related risk factors. A good example relevant here is the collaboration between several ministries and the public entities on improving the quality of day care and after school care.

    • 5. Monitoring & evaluation

      The Committee on the Rights of the Child urges States parties to systematically collect disaggregated data on children within the child justice system and ensure regular evaluations of the system with the involvement of children who have been in contact with the system.40x General Comment No. 24, UN Doc CRC/C/GC/24, para 7. The Minister of Legal Protection has expressed the importance for the Caribbean Netherlands to get a better view of the effectiveness of interventions and has commissioned a study on the possibilities of a quantitative and qualitative monitor for the soon to be implemented juvenile criminal law.

      An important limitation highlighted in the 2019 SitAn was that the availability of quantitative information varied by source and sometimes lacked consistency in methodologies for data reconciliation processes used to estimate, examine trends in and update data. Several important data collection systems were not fully operational, limiting trend analysis, including data on juvenile justice and youth crime prevention. When data was available, it was rarely disaggregated by island, age or gender. The generation of good quality, child-centered data to inform decision making requires coordinated efforts from all departments that produce information. National and island level planning and decision making can have a more powerful impact if information sharing regarding family/adolescent/child-focused interventions is enhanced. Achieving this progress must start with the departments that have specific mandates for child protection and across the juvenile justice system.

      The Ministry of VWS commissioned the Central Bureau of Statistics (CBS) to publish an annual Youth Monitor for the Caribbean Netherlands from 2016 – 2020. While data on births, family situation, education, and labor are published for the Caribbean Netherlands, in comparison to the Netherlands Youth Monitor, no data is published for the Caribbean Netherlands on the national backgrounds of children, youth care, the situation of families receiving financial aid, or youth in conflict with the law. It would be opportune for the ministries and public entities to join efforts to consolidate and strengthen available and necessary data and pool it into one easily accessible source.

    • 6. Conclusion

      The previous discussion has sought to examine the Dutch government’s intention’s to implement a child justice system for the Caribbean Netherlands from a children’s rights perspective. Clarity on the exact amount of children in contact with the law in the Caribbean Netherlands is lacking. While it is laudable that the juvenile justice law will finally be implemented on the islands in 2020, consistent with the recommendations formulated in the 2019 Situation Analysis of Children and Adolescents in the Caribbean Netherlands; a pedagogical approach must be respected, it is important to separate children from adults in detention, and when detained, parental visits must be facilitated. Given the risk factors and vulnerabilities to criminality that children on the islands are confronted with, implementation of the juvenile justice law and a comprehensive policy must be augmented by a robust preventive approach. Also, consistent with the recommendations formulated in the 2019 Situation Analysis of Children in the Caribbean Netherlands, given the inevitable cross-sectoral nature of such a juvenile justice preventive approach, coordination and collaboration between the ministries and between the ministries and public entities is essential. In order to assess the effectiveness of approaches, the necessary data is needed for monitoring and giving an indication of whether policies and approaches have to be adapted.

      The Hate U Give

      Starr Carter heeft van haar vader ‘the talk’ al gekregen, niet over de bloempjes en de bijtjes maar ‘about what to do if a cop stopped me. … “Keep your hands visible. Don’t make any sudden moves. Only speak when they speak to you”,’ als ze er getuige van is dat de politie haar ongewapende beste vriend Khalil doodschiet. Ze moet als getuige voor de jury verschijnen, de Officier van Justitie Ms Monroe leidt de ondervraging.

      ‘“Today, we want to hear in your own words what happened to Khalil Harris, okay?” I look at the jurors, unable to read their faces and tell if they really want to hear my words. Hopefully they do. “Yes, ma’am.” … The same story all over again. I become a robot who repeats how I knew Khalil since I was three, how we grew up together, what kind of person he was. When I finish, Ms Monroe says, “Okay. We’re going to discuss the night of the shooting in detail. Are you okay with that?” The un-brave part of me, which feels like most of me, shouts no. It wants to crawl up in a corner and act as if none of this ever happened. … Three hours. That’s how long I was in the grand jury room.’ 41x A. Thomas, The Hate U Give, Londen: Walker Books 2017, p. 24, 329, 333.

    Noten

    • 1 In broad terms, the position of the public entities is similar to that of Dutch municipalities, with adjustments for their size, distance from the European part of the Netherlands and geographic location in the Caribbean region. The powers of governance in the Caribbean Netherlands are distributed between local island governments and the Dutch national government.

    • 2 A General Administrative Measure (AMvB) is being prepared to implement article 79e, first paragraph, 79o and 79v, second paragraph, of the BES Criminal Code which is the juvenile criminal law. See Kamerstukken II 31959, Stb. 2010, 350.

    • 3 Consistent with the recently issued General Comment No. 24 on children’s rights in the child justice system, the term ‘child justice’ will replace the term ‘juvenile justice’ when referring to the system. See General Comment No. 24 on children’s rights in the child justice system (18 September 2019), UN Doc CRC/C/GC/24.

    • 4 UNICEF Nederland, Situation Analysis: Children and Adolescents in the Caribbean Netherlands, The Hague: UNICEF Nederland 2019.

    • 5 Central Bureau of Statistics, 2019.

    • 6 See : Kloosterboer, Kind op Bonaire, St. Eustatius, en Saba: Kinderrechten in Caribisch Nederland, Samenvatting, Voorburg: UNICEF Nederland 2013. UNICEF Nederland 2019.

    • 7 Openbaar Ministerie Bonaire, St. Eustatius & Saba, Jaarverslag 2016, Bonaire: Openbaar Ministerie Bonaire, Sint Eustatius en Saba 2017, p. 7.

    • 8 E.C. Leertouwer & A. Zaalberg, ‘Achtergronden van de detentieratio in Caribisch Nederland’, Den Haag: WODC 2015, p. 46.

    • 9 The role and responsibilities of the Guardianship Council with regard to juvenile cases are briefly described in section 2.2 and comparable to those of the ‘Raad voor de Kinderbescherming’ in the Netherlands. Guardianship Council translates to Voogdijraad in Dutch. This department falls under the management of the Ministry of Justice & Security (J&V).

    • 10 SitAn refers to the 2019 Situation Analysis of UNICEF the Netherlands. This abbreviation will be used throughout the rest of the article.

    • 11 See S. van der Zee & D. Hoebé, Veiligheidsbeleid BES 2018, Een onderzoek naar praktische handvatten om criminaliteit en onveiligheid op Bonaire, Sint Eustatius en Saba aan te pakken, Bonaire: Openbaar Ministerie Bonaire, Sint Eustatius en Saba 2019, p. 42.

    • 12 BES refers to Bonaire, St. Eustatius, and Saba.

    • 13 JCO Jeugd or Justitieel Casusoverleg Jeugd in Dutch.

    • 14 Youth Care and Family Supervision translates to Jeugdzorg en Gezinsvoogdij (JGCN) in Dutch. This department falls under the management of the Ministry of Public Health, Welfare & Sport (VWS).

    • 15 See ‘Onderlinge regeling als bedoeld in artikel 38, van het Statuut voor het Koninkrijk der Nederlanden regelende de samenwerking tussen Nederland, Aruba, Curaçao en Sint Maarten op het gebied van de onderlinge beschikbaarstelling van detentiecapaciteit op medische gronden of in verband met dringende redenen van veiligheid’.

    • 16 Kamerstukken II 2018/19, 31568, 209.

    • 17 Kamerstukken II 2018/19, 31568, 209.

    • 18 General comment No. 24, UN Doc CRC/C/GC/24, para 24.3.

    • 19 D. Cipriani, Children’s Rights and the Minimum Age of Criminal Responsibility: A Global Perspective, New York: Routledge 2009, p. 37.

    • 20 General comment No. 24, UN Doc CRC/C/GC/24, para 112.

    • 21 Raad voor de Rechtshandhaving, Preventie van Jeugd Criminaliteit in Bonaire, St. Eustatius en Saba, Raad voor de Rechtshandhaving 2016, p. 31.

    • 22 General comment No. 24, UN Doc CRC/C/GC/24, para 111.

    • 23 See General comment No. 24 on children’s rights in the child justice system (18 September 2019), UN Doc CRC/C/GC/24, para 21 and 22.

    • 24 The Council for the Application of Criminal Justice and Youth Protection has advised for the MACR in the Netherlands to be increased to 14; the Dutch government has not adopted this advice. See Raad voor Strafrechtstoepassing en Jeugdbescherming, Verhoging strafrechtelijke minimumleeftijd in context : Advies over verhoging van de strafrechtelijke minimumleeftijd en het belang van goede jeugdhulp, The Hague: Raad voor Strafrechtstoepassing en Jeugdbescherming 2017.

    • 25 Concluding observations on the fourth periodic report of the Netherlands (8 June 2015), UN Doc CRC/C/NDL/4, para 59(a).

    • 26 Kamerstukken II 2018/19, 31568, 209.

    • 27 This reasoning was rejected by the House of Representatives when handling the approval of the CRC; in the Netherlands, this is only allowed if a child is detained under adult criminal law and not because there is a shortage of capacity. See Kamerstukken II 1992/93, 22855 (R 1451), 4, p. 20-22. See also: G.C.A.M. Ruitenberg, De doorwerking van het VN-Verdrag inzake de Rechten van het Kind in de Nederlandse Rechtspraak, WODC: Den Haag 2003.

    • 28 National Research Council and Institute of Medicine. Juvenile Crime, Juvenile Justice. Washington, DC: The National Academies Press 2001, p. 66.

    • 29 A. Debowska, D. Boduszek, N. Sherretts, D, Willmott & A. Jones, ‘Profiles and behavioral consequences of child abuse among adolescent girls and boys from Barbados and Grenada. Child Abuse and Neglect’, Child Abuse & Neglect 2018/79, p. 245-258.

    • 30 Kloosterboer 2013. J. de Bruijn, F. Kriek & K. de Vaan, De Aanpak van Huiselijk Geweld op de BES-eilanden. Amsterdam: Regioplan 2014. R. Bijl & E. Pommer, Five years of the Caribbean Netherlands: Impact on the population. The Hague: The Netherlands Institute for Social Research 2015. Van der Zee & Hoebé 2019.

    • 31 National Research Council and Institute of Medicine 2001, p. 71.

    • 32 Van der Zee & Hoebé 2019.

    • 33 National Research Council and Institute of Medicine 2001, p. 76.

    • 34 National Research Council and Institute of Medicine 2001, p. 77.

    • 35 Central Bureau of Statistics 2018.

    • 36 Central Bureau of Statistics, Jaarrapport 2017 Landelijke Jeugd Monitor, Den Haag: Centraal Bureau voor de Statistiek 2017, p. 156.

    • 37 General Comment No. 5: General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6) (27 November 2003), UN Doc CRC/GC/2003/5, para 27.

    • 38 Kamerstukken II 2018/19, 31568, 209.

    • 39 IdeeVersa, Interdepartementale Samenwerking Caribisch Nederland bij het thema jeugd, Den Haag: IdeeVersa 2019.

    • 40 General Comment No. 24, UN Doc CRC/C/GC/24, para 7.

    • 41 A. Thomas, The Hate U Give, Londen: Walker Books 2017, p. 24, 329, 333.


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