Family courts and restorative justice for children
In criminal cases
By Judge Flordeliz Cabanlit Fargas
Presiding Judge, Family Court Branch 5, Trece Martires City, Cavite
Executive Judge, Regional Trial Court, Trece Martires City, Cavite
Philippines
The criminal justice system is designed to deliver “justice for all.”[1] There are two approaches in dealing with a crime: Retributive Justice and Restorative Justice. Retributive justice is a response to criminal behavior that focuses on the punishment of lawbreakers and the compensation of victims.[2] In general, the severity of the punishment is proportionate to the seriousness of the crime. Restorative Justice, on the other hand, is a process through which remorseful offenders accept responsibility for their misconduct, particularly to their victims and to the community. It creates obligation to make things right through proactive involvement of victims, ownership of the offender of the crime and the community in search for solutions which promote repair, reconciliation and reassurance.[3]
In the Philippines, restorative justice is practiced in the Family Courts when they deal with children. Pursuant to Republic Act 8369 (RA 8369), otherwise known as the Family Courts Act of 1997, the State shall protect the rights and promote the welfare of children in keeping with the mandate of the Constitution and the precepts of the United Nations Convention on the rights of the Child[4]. Thus, family courts were established to have exclusive original jurisdiction over child and family cases. Among these cases are criminal cases where one or more of the accused is below eighteen (18) years of age but not less than nine (9) years of age or where one or more of the victims is a minor at the time of the commission of the offense[5].
A “child” refers to a person under the age of eighteen (18) years.[6] When a child is alleged, accused of, or adjudged as, having committed an offense under Philippine laws, the child is called a child in conflict with the law (CICL). Under Republic Act No. 9344, otherwise known as the Juvenile Justice and Welfare Act of 2006, and in relation to Article 40 of the United Nations Convention on the Rights of the Child, the State recognizes the right of every child alleged as, accused of, adjudged, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, taking into account the child's age and desirability of promoting his/her reintegration. Whenever appropriate and desirable, the State shall adopt measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected. It shall ensure that children are dealt with in a manner appropriate to their well-being by providing for, among others, a variety of disposition measures such as care, guidance and supervision orders, counseling, probation, foster care, education and vocational training programs and other alternatives to institutional care[7].
While the CICL is given a second chance to reform and be eventually reintegrated in the society after rehabilitation, the child victim is not forgotten. The State, through the Department of Social Welfare and Development (DSWD), is tasked to provide assistance such as temporary shelter, medical/surgical treatment, psychological and psychiatric evaluation, treatment, counselling and/or therapy, legal assistance, financial and educational assistance, protection and security provisions, skills training, and livelihood development services, among others not only to the child victim[8] but also to his/her family who may be affected by the trauma.[9]
It is therefore imperative for a Family Court Judge to strike a balance between opposing sides- that is, of ensuring that the rights of the CICL are exercised and, at the same time, the rights of the child victim are sustained while resolving the issues at hand.
While protection of rights starts from the time the commission of a crime/offense is reported, the author will limit the discussion of the interplay of the protection of these rights when an information is already filed in the Family Court wherein the offender is a CICL, and the victim is a child. For brevity, the Family Court shall be referred to as the court and a Family Court Judge shall be referred to as the Judge. The unlawful act shall be referred to as the offense.
In each court, there is a Diversion Committee composed of its Branch Clerk of Court, as chairperson; the prosecutor, a lawyer of the Public Attorney’s Office assigned to the court, and the social worker assigned by the court to the child, as members. In the absence of a Branch Clerk of Court, the chairperson is designated by the judge.[10] The Diversion Committee determines if the CICL be diverted and referred to alternative measures or services when the imposable penalty for the offense is not more than 12 years. Parenthetically, the court releases the child on recognizance to the parents, guardian, or nearest relative; or a youth rehabilitation center which shall be responsible for the presence of the child during the diversion proceedings. If the Diversion Committee determines that diversion is not proper, or when the child objects to the diversion, or when there is failure of the diversion program if undertaken by the child, it shall submit a report to the court recommending that the case be subjected to formal criminal proceedings.[11] Otherwise, arraignment is suspended and a diversion conference is called with the CICL and the child victim together with their respective parents or guardians.
Mediation, family conferencing and conciliation in consonance with restorative justice is facilitated by the Diversion Committee. The CICL, the child victim and their parents or guardians must be present. A rehabilitation program will be formulated which shall cover socio-cultural and psychological services for the CICL which may include reparation of the damage caused, counselling, participation in available community-based programs, or in education, vocation, and life skills program. The court may include, reprimand, fine or institutional care and custody. The individualized program is tailored fit depending on the CICL’s feeling of remorse; the ability of the parents or guardians and the reformation center to supervise, the child victim’s acceptance of the terms and conditions of the diversion contract; and the availability of barangay[12]-based programs for the CICL’s rehabilitation and reintegration.
It must be emphasized that diversion is also done in the barangay, the law enforcement officer and the prosecution if the imposable penalty is not over 6 years.[13]
As previously stated, rehabilitation is not only for the CICL but also for the child victim. Pursuant to law, the Judge ensures that the DSWD provides medical, physical, psychological or psychiatric examination and treatment and even financial assistance, among others, to the child victim.[14] The DSWD monitors his/her condition to confirm that the effects of the trauma are extinguished. The DSWD sees to it that the child victim continues schooling and/or undergo livelihood skills training if it is for his/her best interest.
If the CICL is not qualified to a diversion, trial proceeds. If the CICL is convicted but is still under 21 years old, service of sentence is suspended[15] and disposition proceedings is conducted, this time to be done by the judge. The procedure is just like diversion.
In both diversion and disposition, upon compete rehabilitation of the CICL, the case is considered closed and terminated and records of the CICL are sealed and can only be opened upon order of the court. Strict confidentiality of the proceedings and the records is maintained.[16]
In view of the foregoing, it clear that Family Courts in the Philippines which have jurisdiction over cases involving children are catalysts towards restorative justice. Through the diversion and disposition proceedings, the CICL admits the commission of the offense,[17] and the harm he/she has caused; undertakes to compensate the child victim for the injury; engages in activities which would prevent him/her from doing a misconduct and productive programs for his/her wellbeing, the family and the community. The child victim, on the other hand, participates in the proceedings because his/her concerns are heard; the needs are addressed; and the government provides support and services throughout the trial. The community like the barangay is given the opportunity to provide support for a holistic reformation so that the CICL can be reintegrated to the society. More importantly, the implementation of restorative justice is for the best interest of the child.
[1] https://www.goodwin.edu/enews/importance-of-the-criminal-justice-system/#:~:text=The%20criminal%20justice%20system%20is,it%20keeps%20our%20citizens%20safe, 24 February 2024, 10:45 a.m.
[2] https://www.britannica.com/topic/retributive-justice, 24 February 2024, 2:03 p.m.
[3] https://probation.gov.ph/restorative-justice/#:~:text=WHAT%20IS%20RESTORATIVE%20JUSTICE%3F,victims%20and%20to%20the%20community, 24 February 2023, 2:05 p.m.
[4] Section 2 of R.A. 8369, otherwise known as the Family Courts Act of 1997.
[5] Section 5 (a) of R.A. 8369.
[6] Section 4 (e ) of R.A. 9344, otherwise known as the Juvenile Justice and Welfare Act of 2006.
[7] Section 2 (d) of R.A. 9344.
[8] See Section 8 (c ) of A.M. No. 22-04-06-SC dated 19 April 2022.
[9] See Section 6, paragraph (b ) in relation to Section 8 (C ) paragraph 1, subparagraph (a) of A.M. No. 22-04-06-SC dated 19 April 2022.
[10] Section 29 of A.M. No. 02-1-18-SC, Supreme Court Revised Rule On Children In Conflict with the Law.
[11] Section 30 of A.M. No. 02-1-18-SC, Supreme Court Revised Rule On Children In Conflict with the Law.
[12] The smallest administrative division in the Philippines.
[13] Section 23 (a) and Section 31 of R.A. 9344.
[14] Section 8 © paragraph 1 of A.M. 22-04-06-SC dated 19 April 2022.
[15] Section 38 in relation to Section 40, second paragraph of R.A. 9344.
[16] Section 43 of R.A. 9344.
[17] Section 26 of R.A. 9344.