Dealing with young offendersDiversion is a new concept in the juvenile justice system that emphasises reform instead of punishment.
Whenever we hear the term diversion, we simply understand it to mean to divert from the regular direction. From this general understanding, diversion is the concept of redirecting or diverting any person from the task he or she is involved it. The concept of diversion is a common strategy that is used in the criminal justice system to reform or rehabilitate criminal offenders. This strategy involves cooperating with offenders to help them rejoin society and adapt socially compatible behaviour.
The concept of diversion is mostly applied to offenders who have been involved in petty offences or offenders who belong to special groups like children and elderly people. Diversion focuses more on offenders where the problem can be solved by rehabilitating them into society and unburdening the courts of such cases. Juveniles can be rehabilitated if they promise not to repeat the offence in the future. This concept evolved with the objective of reforming groups involved in criminal activities, the primary concept of a reformative justice system.
Nepal, as a step towards ensuring the rights of children as enshrined among the fundamental rights in the constitution, promulgated the Children's Act 2018. The law defines diversion as an instance of diverting or practising procedures other than the formal judicial process in the case of children involved in criminal offences. Where the United Nations Convention on the Rights of the Child has adopted the Child's Best Interest as the major principle for the protection of children, the Children's Act 2018 has enshrined the implementation of the principle for the purpose of diversion.
The act has made the investigation officer an institution for diversion for children who have committed offences that involve property worth up to Rs5,000, or offences punishable with a fine of up to Rs2,000 or imprisonment up to one month. The government attorney will be the investigation officer for offences that involve property worth up to Rs10,000, or offences punishable with a fine of up to Rs5,000 or imprisonment up to three months. The Juvenile Court will handle cases involving graver offences.
The court always pays attention to the analysis of the fact that the juvenile confesses the crime, agrees to act for their rehabilitation and reintegration and the nature of the offence with the degree of pain infliction on the victim. Here, the children's agreement is equally prominent as the consent of the parent or the guardians of the juveniles. The Act has highlighted that the Act together is in action for not only the protection of the interest or best interest of children, but also is demonstrating the practice of rehabilitation, reformation and reunion of the juveniles with the family. Diversion can be conducted by following different procedures like negotiating with the victim, making them understand the wrong they have done, counselling the family, engaging them in community service, reforming them through different reform centres, setting them free under the supervision of a child welfare officer, parents or guardians, and engaging them in academic activities.
Juveniles can be diverted by adopting one of these processes, with or without allocating a definite time frame. As Nepal is a party to the Convention on the Rights of the Child and the convention is greatly concerned about the protection of all children, even child offenders whom we call juveniles, it has adopted the provision of diversion. Nepal has initiated the concept of diversion for juveniles even though implementation is challenging.
This is really an exemplary initiation for it focuses on rehabilitation and reintegration of juveniles with the hope of bringing positive change and improving the mindset of children, which is a more comprehensive and sustainable result than punishing them. Defining the categories for diversion is also assistive for the institutions concerned, but it should be done in a scientific manner. The objective set by the Children’s Act 2018 can be achieved with the realisation of positive behaviour, a positive attitude resulting in transformation and elimination of negative deeds.
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