Acting in the best interests of children with psychiatric disorders who conflict with the law: A critical analysis of South African legislation

• Citation: (2023) 36 SACJ 58
• DOI: https://doi.org/10.47348/SACJ/v36/i1a4
• Published date: 31 July 2023
• Pages: 58-82
• Author: Geoffrey, L.C.
• Date: 31 July 2023

Acting in the best interests of

children with psychiatric disorders

who are in conict with the law:

Acritical analysis of South African

legislation

LEANDRÉ C GEOFFREY*

MARELIZE I SCHOEMAN**

ABSTRACT

The signicant prevalence of p sychiatric disorders in ch ild offenders requires

the justice system to provide di rection in the treat ment of these children.

This submission conside rs whether the Childre n’s Act 38 of 2005, the Child

Justice Act 78 of 2008, t he Criminal P rocedure Act 51 of 1977 and the child

justice procedures uphold the best inte rests of child offenders with a mental

illness or defects by ju xtaposing South A frican legislation and ch ild justice

procedures with the bes t interests standa rd principle. The authors conclude

that current legislat ion and legal procedures are not in t he best interests of

children with ps ychiatric disorders. Ch ildren with menta l illness or defects

are not adequately protected and they c annot participate equ ally in justice

delivery processes. Fu rthermore, adequate conside ration is not given to

the affect of mental d isorders or defects in deci sions during child just ice

proceedings. It is recommended t hat the Child Justice Act b e amended to

include a section in which the r ights of children wit h psychiatric disorder s

are protected and measure s be put in place to address their ps ychosocial

and developmental needs. Child ren with psychiatric d isorders who are in

conict with the law should b e classied as child ren in need of care and

protection to break the causa l nexus between psychiat ric disorders and

delinquency.

* BA BA(Hons) MA PhD BA(Hons) (Unisa), Senior Lectu rer, School of Criminal Justice

and Criminolog y, University of Limpop o

** BA MA DPhil (Pretoria), Professor, Depar tment of Crimi nology and Securit y Sciences,

School of Crimi nal Justice, College of Law, University of South Af rica

https://doi.org/10.47348/SACJ/v36/i1a4

58

(2023) 36 SACJ 58

© Juta and Company (Pty) Ltd

1 Introduction

Research estimates that mental health problems impact 10 to 20 per

cent of children,1 with one in ten of all ve to 17-year-olds being

affected by psychiatric disorder (s),2 which will re-occur and persistence

into adulthood.3 The onset of a psychiatric disorder is not sudden

but gradual with changes in an individual’s biological, psychological

and socio-cultural surroundings and exposure to adverse experiences

being catalysts.4 Further more, the development of psychiatric disorders

is not the result of exposure to a singular adverse environ ment or

experience but the amalgamation of various factors that place chi ldren

at risk. Despite the lack of national statistics, research shows a high

prevalence of psychiatric disorders among South African children who

are in conict with the law and/or need care and protection.5

Research identies neurodevelopmental disorders, such as attention

decit hyperactivity disorder (A DHD), learning disorders (LD),

intellectual developmental disability (IDD) and disr uptive, impulse -

control disorders, such as oppositional deant disorder (ODD) and

conduct disorder (CD), as the most common psychiatric disorders

1 According to the Chi ld Justice Act 75 of 2008, a c hild in conic t with the law

is dened as an ind ividual under 18 years of age who com es into contact with

the crimi nal justice system due t o being suspected of, accu sed, or found guilt y of

infringi ng upon the law.

2 See American Ps ychiatric Asso ciation Diagnostic a nd Statistical Manual of Me ntal

Disorders 5ed (2013) 20 in which a mental disorder is de ned as a disorder t hat

signicantly i mpairs an indi vidual’s cognitive, conative a nd emotional regulat ion

which reects as a dy sfunction in the ps ychological, biological, and/or developmenta l

process of mental f unctioning. The te rms ‘mental disor der’, ‘mental illness’, and

‘psychiatric dis order’ are used int erchangeably in thi s article.

3 See V Stancheva ‘Menta l health in child ren: Children a nd adolescents living w ith

chronic medical i llness’ (2022), available at http://www.dgmc.co.za/chronic-med ical-

illness, accesse d on 17 October 2022 and X Hunt, S Skeen, S Honi kman, JBantjies,

K M Mabaso, S Docrat and M Tomli nson ‘Maternal, ch ild and adolescent menta l

health: An ecologic al life course pers pective’ in M Shung-K ing, L Lake, DSande rs

and M Hendricks So uth African Child Gauge 2019 Leave No On e Behind (2019)

part 2, 131.

4 LC Geoffrey A Transdisci plinary Appro ach to Dealing with Child Of fenders with

Psychiatric Di sorders PhD (2018) 36.

5 Various authors conr m a signicant preva lence of mental ill ness and defects in

South Afric an children th at are in need of care an d protection and/or in con ict

with the law. See Geoffrey op c it (n4) 113-114; T Grisso ‘Adolescent offenders with

mental disorder s’ (2008) 18 Future of Children 14 3 at 150-151; Geoffrey op cit (n4)

42-44; M Swane poel ‘Legal aspec ts with regard to ment ally ill offende rs in South

Africa’ (2015) 18 SA J Psychiatry 323 8.

Acting in the best interests of children with

psychiatric disorders who are in conict with the law

59

https://doi.org/10.47348/SACJ/ 36/i1a4

© Juta and Company (Pty) Ltd