Services for Juvenile Delinquents through the Lens of the Convention on the Rights of the Child

On November 1, 2017, the Judiciary and Organic Laws and Statutes Committee of the Legislative Yuan held a public hearing titled "Reviewing the Dilemmas and Legislative Prospects for Treatment Services for Juvenile Delinquents." This public hearing was convened because Legislator Wang Yu-min (王育敏) proposed an amendment to Article 53 of the Protection of Children and Youths Welfare and Rights Act. The original article stipulated that minors who use drugs should be reported to the competent authorities of the municipality or county (city) for investigation and assessment, thereby connecting to various child assistance programs specified under the Act. However, Legislator Wang's amendment proposed that if minors using drugs are subject to the reporting or notification provisions of the Juvenile Justice Act, they no longer need to be reported under this Article.

This amendment was primarily introduced because, under the operational realities and resource constraints of our country's child protection mechanism, frontline practitioners hope to limit child protection reporting and investigation jurisdictions to domestic abuse situations. Moreover, under current practical operations and resource allocations, when drug-using minors are merely reported, it is difficult to provide subsequent welfare services that meet their needs, causing reporting to become a waste of time that crowds out personnel resources.

The amendment looks very much like the vulnerable preying upon the vulnerable: rather than realizing that both juvenile delinquents and children who suffer from domestic abuse require greater input of welfare resources and appropriate systemic reorganization, it establishes that the child protection mechanism should only apply to domestic abuse, thereby avoiding the crowding out of social work personnel. This triggered a backlash from juvenile justice professionals who have long felt that welfare service resources for juvenile delinquents are insufficient and marginalized.

Against this background, this public hearing did not focus solely on whether "drug-using minors should be reported pursuant to Article 53 of the Protection of Children and Youths Welfare and Rights Act," but rather invited relevant stakeholders to contemplate: What are the dilemmas in treatment services for juvenile delinquents? How should the laws be amended?

The outline for discussion was:

1. What are the practical dilemmas in the treatment of juvenile delinquents? How can we cooperate with the child protection system to properly address the welfare needs of children?
2. What are the processing procedures for local government social welfare units after receiving reports under the Protection of Children and Youths Welfare and Rights Act? During the post-receipt processing, how should they cooperate with judicial, police, educational, and health units?
3. How should juvenile probation officers divide labor and cooperate with local government social welfare units?
4. How can we establish specialized judicial social workers handling juvenile delinquents to implement judicial services for children and youth?

The JRF was also invited to attend this public hearing. This article is the written material submitted by the JRF representative who attended by invitation. It emphasizes that from the perspective of the best interests of the child, the welfare service system needs to invest more resources in juvenile delinquents, and resources should be inventoried and provided according to the needs of the children. Resources should not be viewed as the sole responsibility of the judicial system simply because of the "delinquency" or "judicial" label attached to them. Government units at all levels should cooperate to establish a support system that aligns with the best interests of the child, and we must understand what difficulties must be faced and resolved to achieve this goal.

Juvenile Delinquents Under the Convention on the Rights of the Child

Taiwan's approach to handling "juvenile delinquents" may risk violating the Convention on the Rights of the Child (CRC), and the government should reflect on the necessity of reform.

According to Article 3 of the CRC, "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." Article 40 of the CRC states that a comprehensive juvenile justice policy must address the following core contents: prevention of juvenile delinquency; interventions not resorting to judicial proceedings; and interventions taken within judicial proceedings. From the perspective of the CRC, institutional design based on the best interests of the child dictates that preventive strategies for children (defined under the Convention as those under 18 years of age) are of the highest priority, and children should be kept out of the juvenile justice system as much as possible.

The guiding principle of "keeping children out of the juvenile justice system as much as possible" is more clearly articulated in General Comment No. 10 of the CRC through the introduction of the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines). Paragraph 17 of General Comment No. 10 states: "... States parties should integrate the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines) (General Assembly resolution 45/112, annex) into their comprehensive national policy for juvenile justice ..." Furthermore, according to Article 4 of the Riyadh Guidelines: "... the need for preventive measures entails that deliberate efforts should be made to provide opportunities for a young person, ab initio, to meet her or his needs ..." Article 5 states: "The necessity for and importance of progressive policies for the prevention of delinquency and the systematic study and detailed elaboration of measures should be recognized. These policies and measures should avoid the criminalization and penalization of the child for behavior that does not cause serious harm to the development of the child or others." Article 6 provides: "Community-based services and programmes should be developed for the prevention of juvenile delinquency ... Formal agencies of social control shall be utilized only as a means of last resort." Article 10 adds: "The emphasis of the programmes destined for preventive policy should be well-founded on the provision of the successful socialization and integration of all children and youth, in particular through the family, the community, peer groups, schools, vocational training and the world of work, as well as through voluntary organizations."

Why Children Should Be Kept Out of the Juvenile Justice System

The reason to avoid bringing children into the juvenile justice system is that while the juvenile justice system differs from the traditional adult criminal justice system, certain characteristics shared with the traditional criminal justice system can still harm children:

• Juvenile justice carries a certain stigma and labeling effect, which occurs not only upon conviction or disposition, but even the moment one is targeted for intervention.
• Juvenile justice inevitably carries a punitive (painful) nature. This nature persists even in measures named "protective measures," as the underlying threat remains the "loss of liberty." Unfortunately, when the punitive atmosphere in society strengthens, the consideration of the "best interests of the child" in juvenile justice is easily replaced by public feelings of security and retributive emotions.
• "Deprivation of liberty," regardless of whether it is named "imprisonment," can cause harm to children as long as it involves isolation from society. This separates juveniles from their parents, peers, and neighborhoods, preventing them from learning how to deal with life's challenges in the social environment they will inevitably inhabit in the future. Release may also subsequently affect their opportunities for further education and employment.

Defects in Taiwan's Institutional Design

Taiwan's approach to handling "juvenile delinquents" may risk violating the Convention on the Rights of the Child, which can be observed in how the welfare system treats drug-using children and youths. According to the Protection of Children and Youths Welfare and Rights Act, drug-using minors should be reported for child protection and receive subsequent assistance. However, in May 2013, pursuant to a proposal by the Legislative Yuan, the Ministry of the Interior formulated the "Screening, Classification, and Hierarchical Processing Mechanism for Reports under Article 53 of the Protection of Children and Youths Welfare and Rights Act." Under this mechanism, "cases of juveniles using drugs and other substances harmful to physical and mental health: referring to juveniles under Article 3, Paragraph 2, Subparagraph 6 of the Juvenile Justice Act who inhale or inject psychotropic substances other than opium or narcotic drugs" are categorized as "cases that other agencies shall handle according to other laws and regulations." In other words, child protection workers who receive such reports are not required to conduct an assessment; instead, the cases are directly classified and screened out. Unless these cases concurrently involve sexual assault, improper treatment, acting as attendants in inappropriate venues, or domestic mistreatment and abuse, the child protection mechanism is not triggered. This essentially hollowed out legal provisions through administrative rules.

Child Protection Report Cases Are Divided into Five Major Categories

Category 1 Cases: Referring to "cases that other agencies shall handle according to other laws and regulations," including three types:

1. Campus bullying cases: referring to campus bullying events as defined under Article 3 of the Ministry of Education's Regulations on Prevention of Campus Bullying.
2. Campus sexual harassment and sexual bullying cases: referring to campus sexual harassment and sexual bullying events as defined in Article 2 of the Gender Equity Education Act.
3. Juvenile drug use and other physical/mental harmful substance cases: referring to juveniles under Article 3, Paragraph 2, Subparagraph 6 of the Juvenile Justice Act who inhale or administer psychotropic substances other than opium or narcotic drugs.

The practice of merely reporting drug-using minors and then screening them out means, in a sense, that frontline child protection workers no longer consider conducting needs assessments and providing services for drug-using minors to be within their job scope. As such, filing child protection reports for these cases serves little purpose beyond wasting resources. Considering that this exhausts frontline social work manpower and crowds out the time and personnel social workers need to screen emergency cases, it is not difficult to understand why Legislator Wang Yu-min and others proposed amending Article 53 of the Protection of Children and Youths Welfare and Rights Act in October 2017 to explicitly stipulate that those subject to reporting provisions under the Juvenile Justice Act do not need to be reported under this Act. However, following this legislative logic, drug-using minors essentially enter the juvenile justice system first at the legal level, and social welfare resources are linked only if needed. This is inconsistent with the guiding principle of the CRC to keep children out of the juvenile justice system as much as possible.

Stemming from the spirit of the CRC, even whether "children who have not caused serious harm to their own development or the behavior of harming others" should be defined as "juvenile delinquents" is questionable. "Delinquency" still absorbs certain children into the juvenile justice system from the perspective of crime (or potential development into crime), and this perspective inherently carries undertones of emphasizing social defense. Although our country's Juvenile Justice Act strives to soften this tone, its fundamental perspective remains unchanged. Therefore, some countries and advocates adopt concepts such as "vulnerable children" or "children in need." Under this conceptual framework, so-called "delinquency" should be viewed as part of risk behaviors, which point more toward unmet needs in a child's development rather than harm to society. During this public hearing, there was a desire to discuss how to establish "judicial social workers" to implement "judicial" services for children and youths. I believe this easily falls into a trap of prematurely categorizing "juvenile delinquents" under the scope of juvenile justice, which must be approached with caution. The National Association of Social Workers in the United States even advocates that children in the juvenile justice system should be viewed simply as children rather than criminals, so as to avoid viewing these children from a punitive perspective. Social work practitioners involved in this system are categorized not as "judicial social workers," but as "mental health or substance abuse social workers."

How to Strengthen Treatment Services

Putting aside the terminology of "judicial social workers" for the moment, the problem becomes: How should social workers assisting such vulnerable children be deployed? The National Congress on Judicial Reform has put forward a recommendation: referring to the Japanese Child Consultation Center system, integrate resources from social welfare, police, medical, educational, and prosecutorial systems to assist local governments in establishing specialized identification, screening, and counseling mechanisms for child abuse, destitute children, pre-delinquent juveniles, and drug-using juveniles. Regarding the Japanese Child Consultation Center system, reference can also be made to the overseas inspection report by Yu Hung-kan of the Children's Bureau (now integrated into the Social and Family Affairs Administration of the Ministry of Health and Welfare) and the inspection report on Japan's juvenile justice, investigative identification, and pre-delinquent handling systems by the Judicial Yuan. In addition, the National Congress on Judicial Reform also recommended that, to implement the identification functions of juvenile detention centers, the Agency of Corrections of the Ministry of Justice should increase professional manpower such as medical, psychological, and social work personnel in juvenile detention centers. For why juvenile detention centers should be staffed with such personnel to possess identification functions, one may also refer to the aforementioned inspection report by the Judicial Yuan.

Even if resources are invested to deploy social workers across different units, there are still other unresolved problems:

1. Whether social workers have the capacity to assist children and youths. When facing children and youths involved in drug use, deviant behavior, or even serious crimes, social workers actually require special training. For current child protection social workers, the problem is not only insufficient manpower, but also that they may not necessarily know how to build a trusting relationship with such children. Such youth have their own subculture; social workers who do not understand slang and fail to catch the meaning of their words may be dismissed as "knowing nothing" right from the start.
2. Whether the perspective of social work intervention is service or control. Whether the primary goal of a social worker's work is to monitor juveniles or help them solve life problems changes the approach depending on the perspective. This is very evident in casework concerning drug-using minors. When a minor tells a social worker that they use drugs, should it be reported to judicial personnel? When knowing a minor uses drugs, should one understand the reasons and, when necessary, inform them of harm-reduction practices, or strongly demand that they cease use under any circumstances? Such practical dilemmas in frontline work actually require more systemic solutions rather than being dumped entirely on frontline personnel.
3. How teamwork is conducted. This is actually the most difficult problem, and the challenges vary greatly at different stages, requiring meticulous handling. Regardless of the stage, insufficient resources is the primary practical dilemma faced by teamwork. Once resources are scarce, no matter how sound the institutional design is, it easily ends up as paperwork or a mere formality. Furthermore, there is institutional parochialism: instead of taking helping children as a common goal, various agencies and groups have their own targets to achieve — the police must secure case-solving performance, social workers must meet contact requirements, and NGOs must fulfill government subsidy project requirements. Setting the common goal as helping children improve their lives rather than each fulfilling their own KPIs is crucial. In terms of current government operations, central-level agencies still hold considerable policy-making power. For central-level agencies to set common goals, conduct cross-unit cooperation, and view solving practical cooperation difficulties as a governance priority would likely help strengthen frontline teamwork.