Session Three: The Role of the Judiciary inJuvenile Justice

Mr. Toru Miura, Professor, UNAFEI, Japan
Mr. Kazuaki Hashimoto, Senior Family Court Probation Officer, Japan
Hon. Justice Ms. Joyce Aluoch, High Court Judge, Kenya
Mrs. Scholastica Omondi, Senior Resident Magistrate,
Nairobi Juvenile Court, Kenya

Please note that the following papers have not been edited
for publication. The opinions expressed therein are those of
the author’s. They do not necessarily reflect the position of
the departments or agencies that they represent.

THE ROLE OF THE FAMILY COURT IN THE ADMINISTRATIONOF JUVENILE JUSTICE IN JAPANMr. Toru MIURA
Professor, UNAFEI
Chief of Training DivisionI.

THE JAPANESE COURT SYSTEM AND THE FAMILY COURT

A.

Court Structure

Similar to other countries, there are three levels of court proceedings in Japan. There are five typesof courts: the Supreme Court, High Court, District Court, Family Court and Summary Court.
The Japanese Constitution vests all judicial power in the Supreme Court and other inferior courts.
No tribunal, organ or agency of the executive branch can be given final judicial power. All criminal andjuvenile cases are, without exception, heard and determined by ordinary judicial tribunals.
B.

The Family Court

Family Courts were established on January 1, 1949 in order to maintain peace in the family and topromote the sound upbringing of juveniles. Family Courts deal with family affair cases or disputes between
family members or relatives such as spouses, parents and children. The Courts also handle juvenile
delinquency cases concerning juveniles under 20 years of age, as well as adult criminal cases detrimental
to the welfare of juveniles. The requisites for the jurisdiction of the Family Court over juvenile delinquency
cases will be referred to in detail later.
It should be noted that, in Japan, juvenile delinquency cases are regarded as different cases from
criminal cases, which are mainly dealt with by the District Courts and Summary Courts.
In the Family Court, there are approximately 350 judges including assistant judges, 1,200 court clerks,
1,500 family court probation officers, 50 medical officers, 50 nurses, and 2,350 other staff.

II.

PROCEDURE FOR JUVENILE CASESA.

Characteristic Features

Since Family Courts place emphasis on preventing the reoccurrence of disputes or delinquency, theyutilize flexible procedures differently from those commonly used in criminal and civil cases. In juvenile
delinquency cases, the Courts take protective measures such as probation and commitment to a Juvenile
Training School with a view to protecting juveniles rather than punishing them.
The following features of the Japanese system are worth mentioning.
1. The Judge
Juvenile delinquency cases are presided over basically by a single judge. The qualification of the
Family Court judge is the same as of the District Court judge, except that an assistant judge, who has lessthan five years of experience, has the power to render any decision at his/her own discretion basically, while— 81 —

an assistant judge cannot preside over a trial in the District Court. The Japanese system does not have ajury system nor assessors.
All cases are sent to the Family Court for adjudication. Unlike adult cases, as long as there exists
evidence to prove the facts, police officers and public prosecutors do not have the discretion not to send
juvenile cases to the Family Court. The Courts are given a broad discretion both substantially andprocedurally. In this sense, the Family Court judge plays a pivotal role in juvenile criminal justice.
2. Necessity for Protection
The necessity for protection is the most important factor in determining the protective measures forthe juvenile. The existence of delinquent facts is the prerequisite to take protective measures for thejuvenile. However, the kind and content of protective measures basically depend upon the necessity forprotection. Factors considered include the recidivist nature of the juvenile, the possibility of correction, andthe appropriateness of protection as well as other factors.
3. Ex Officio Type of Hearing
When a juvenile case is referred to the Family Court, all the investigation records are also forwarded.
The Family Court judge presides over the hearing, which is attended by the juvenile and his/her parents or
guardian. His/her attendant, employer or school teacher also attends depending on the case. The Court
delivers a decision based on the investigation records, the social inquiry report prepared by the Family Court
Probation Officer and what it has heard during the hearing.
4. Non-publicity
A juvenile hearing is not open to the public in order to protect interests of privacy of the juvenile.
Moreover, when the Family Court Probation Officer investigates a case (e.g., interviewing the juvenile at
the Court, visiting the juvenile’s family or inquiring with the school), great attention is paid not to harm thejuvenile’s feelings and reputation. The case record is not open either, including the social inquiry report
prepared by the Family Court Probation Officer and his opinion concerning the case. The news media is
not allowed to carry accounts or photographs which might identify the juvenile.
5. Separation of Handling
In Japan, a juvenile suspect or accused is separated from other suspects or accused and is kept, as far
as possible, out of contact with them. Social inquiries and hearings in the Family Court are also conducted
separately from other juveniles in principle.
B.

Jurisdiction of the Family Court over Juvenile Delinquency Cases

The Family Court handles cases involving delinquent juveniles under 20 years of age. “Delinquent
Juveniles” include not only minors who have committed criminal offences under the penal laws but
juveniles whose tendencies indicate that they might commit offences in future as well.
The Court has primary jurisdiction in regard to all delinquent juveniles, whether the offences arefelonies such as homicides or arsons, or misdemeanors such as traffic offences. Thus, all criminal cases
concerning minors must primarily be sent to the Family Court as juvenile delinquency cases for investigationand hearing.
The Juvenile Law also provides that the Family Court has jurisdiction over a minor such as one who;(a) habitually disobeys the proper control of his custodian, (b) repeatedly deserts his home without proper— 82 —

reason, (c) associates with persons having a criminal tendency or who are of immoral character, or immoral
persons, or frequents places of dubious reputation or (d) habitually acts so as to harm or endanger his/her
own morals or those of others, provided that looking at his/her character or environment there is a strong
likelihood that the minor involved will become an offender.
Children under 14 years of age are primarily handled by the Child Guidance Centre, as provided by
the Child Welfare Law when they have committed acts which, if committed by a person over 13, would
constitute an offence under the penal laws. These young children come under the jurisdiction of the Family
Court only when the Prefectural Governor or the Chief of the Child Guidance Centre refer them to the
Family Court.
The Family Court ordinarily has jurisdiction over any juvenile under 20 years of age, and has
jurisdiction over persons more than 20 years of age in certain exceptional cases.
C.

Referral of Cases to the Family Court

Just as in adult cases, the police and public prosecutors are responsible for the investigation ofjuvenile cases. However, it must be conducted in conformity with the statutory policy for the protection ofjuveniles with particular concern that investigative procedures do not harm the welfare of the juveniles underinvestigation.
Following an investigation, if the police or public prosecutors believe that a juvenile has committed
an offence, the case must be referred to the Family Court. Neither the police nor public prosecutors possess
any discretionary power concerning the referral of such cases.
Other than these referrals of cases, juvenile delinquency procedures commence when the Family
Court Probation Officer discovers a delinquent juvenile and reports him/her to the Court, or when theguardian of a juvenile, a school teacher, or any other person informs the Court of a case.
D.

Family Court ProceduresUpon receipt of a juvenile case, the Court examines the evidence and decides whether there is
probable cause. For this purpose, if necessary, the Court can take legal measures to examine the case, suchas calling witnesses. When the Court believes that there is sufficient evidence to prove probable cause, it
orders a Family Court Probation Officer to conduct a social inquiry to collect necessary data to decide theappropriate treatment.
1. Family Court Probation Officers and Social Inquiry Reports
The social inquiry reports are equivalent to the pre-sentence investigation and reports used for adults
in some countries to determine an appropriate sentence. (However, such a system does not exist in Japanfor adults.) According to the Juvenile Law, in making this inquiry, “every effort shall be made to makeefficient use of medical, psychological, pedagogical, sociological and other technical knowledge, especiallythe result of the physical and mental examination conducted in the Juvenile Classification Home, in regard
to the conduct, career, temperament, and environment of the juvenile, his guardians or of other persons
concerned”.
Family Court Probation Officers have professional backgrounds in psychology, pedagogy orsociology, and are trained as social workers. The inquiry usually covers such matters as the juvenile’s
character, personal history, upbringing, environment and degree of delinquency. The Family Court
Probation Officer reports the investigative findings to the judge, accompanied by recommendations about
appropriate treatment for the juvenile based on his/her professional knowledge and experience.

— 83 —

Family Court Probation Officers usually perform not only investigations themselves but also givevarious instructions, advice, and admonitions to the juvenile as well as to the parents to prevent further
offences and help his/her rehabilitation. If the Court is satisfied that the Officer has laid down sufficient
educational action to prevent further offending, the Court will dismiss the case.
The role and the function of the Family Court Probation Officer will be explained further by Mr.
Kazuaki Hashimoto.
2. Juvenile Classification Homes
A Family Court judge is empowered to authorize the detention of a juvenile when it is necessary forthe purpose of either an inquiry and hearing, or a diagnostic examination of a juvenile’s mental and physicalcondition. Detention is accomplished at a Juvenile Classification Home where the necessary diagnostic
examination is conducted.
Juvenile Classification Homes submit diagnostic results and classification recommendations to the
Family Court to be utilized as background data for preliminary investigation by the Family Court Probation
Officer, Family Court hearings, decision of treatment, and enforcement of protective measures. Detention
in a Juvenile Classification Home cannot exceed 4 weeks, an exception has been introduced in the
Amendments of 2000.
3. Attendant System
A juvenile, his/her parents, or legal guardians may appoint attendants. The permission of the Family
Court is needed unless the attendants are lawyers. The duty of the attendant is similar to a defence counsel’srole in criminal procedure: (1) to cooperate with the Court in order to ensure fair and just procedure; and(2) to protect the juvenile’s rights and interests.
4. Hearing
After the completion of the inquiry and report, the Court sets the hearing date. However, when the
Court thinks that a hearing is not necessary, it can dismiss the case without conducting a hearing. This
disposition is taken when the delinquent’s act is minor and when contact with the Family Court Probation
Officer can be considered as guidance or educational action.
At the hearing, the juvenile, the parents or guardians, and the Family Court Probation Officer incharge must be present, and the attendant may be present as well. However, it is not open to the public.
The judge has wide discretion concerning the procedure of the hearing. Juvenile Law only offers the
Court guidance by requiring that the hearing be conducted in a mild atmosphere with emphasis on empathy;
it should also be conducted with the prompt introspection of the delinquent.
Generally speaking, the judge usually reads and explains the alleged delinquent acts to the juvenileand hears the juvenile’s response. When the judge finds enough evidence of delinquent acts, he/she
examines the social inquiry report to assess the juvenile’s delinquent tendencies and the possibility ofrehabilitation, and then hears testimony from the juvenile’s parents or teachers.
When the judge thinks that it is inappropriate to decide a case immediately, or that further and morethorough investigation must be necessary before a determination can be made, the judge can, as an interim
measure, order tentative probationary supervision. In such an instance, a juvenile may be placed under thesupervision of the Family Court Probation Officer. During this period of supervision, the juvenile may
continue to live with the person (his/her parents or guardians) who is charged his/her protection under— 84 —

conditions imposed by the Family Court or he/she may be placed under the guidance of a suitable institution,agency or individual. This intermediate disposition, taken while the final determination is held insuspension, is called tentative probation and is one of the most important responsibilities of Family Court
Probation Officers.
E.

Adjudication

The Family Court makes a final decision on the case based upon the evidence submitted by theinvestigative agency, the social inquiry report and the results of the hearing.
The Court can impose protective measures only when the evidence proves the case beyond areasonable doubt, the same as in a criminal trial. When there is reasonable doubt, the Court dismisses thecase.
According to the underlying philosophy of the Juvenile Law, juvenile delinquents should not bepunished but educated and rehabilitated as sound citizens through protective measures. The following
categories represent the main types of final decisions rendered by the Family Court:
1. Dismissal
a. Dismissal Without Hearing
There are two categories for Dismissal Without Hearing:(1) A case will be dismissed without a hearing when there is no probable cause, or when a hearing
is legally impossible for such reasons as a juvenile’s insanity.
(2) A case will be dismissed without a hearing when the Court finds it is unnecessary to take an
educative measure because the delinquent act is minor and/or actions already taken by the police,
school, home, or the Family Court Probation Officer are sufficient for preventing another act ofdelinquency.
b. Dismissal After Hearing
If the Court determines that admonition and advice by the judge and the Family Court Probation
Officer to the juvenile will suffice in lieu of protective measures, the case is terminated through adismissal order.
2. Protective Measuresa. Probationary Supervision
The juvenile is placed under the guidance and supervision, as well as the support, of the ProbationParole Supervision Office. This is an organ of the Ministry of Justice. The actual supervision overjuveniles is undertaken by the Probation Officer of the district office and he/she is aided in his/herwork by volunteers from among the public who are called Volunteer Probation Officers.
b. Commitment to Support Facilities for the Development of Self-sustaining Capacity, etc.
The Support Facilities for the Development of Self-sustaining Capacity were established under theChild Welfare Law and managed by National or Prefectural Governments, or private persons in orderto take care of delinquent juveniles or juveniles prone to delinquency. The Homes for DependentChildren created under the same law are designed to care for dependent, abused, or neglectedchildren. The Family Court can send a juvenile to a welfare facility when deemed appropriate.

— 85 —

c. Commitment to Juvenile Training School
The Court may refer a juvenile, as a protective measure, to a Juvenile Training School where thejuvenile will be accommodated for a specified period and given guidance to promote a positive
attitude, as well as the ability to live a normal life.
The Court is supposed to designate the type of Juvenile Training School to which the juvenile should
be committed, i.e., Primary-which care for juveniles under 16 without the necessity of medical care,
Middle-which care for juveniles over 15 without aggravated criminal tendencies, Special-which carefor juveniles 16 to 22 who have aggravated criminal tendencies, and Medical-which care for all
juveniles 14 to 25 who need medical treatment physically or mentally.
When making the above decision, the Court may make recommendations to the Training School
concerning the juvenile’s treatment. For example, the Court may recommend a short-term
programme which, in particular, is practically followed by the correctional authority. The term thatthe juvenile is accommodated for ranges from several months to 2 years, and in exceptional cases
more than 2 years.
If the juvenile himself/herself or his/her legal representative or Attendant objects to the Family
Court’s determination, they may file a Kokoku appeal in the High Court. In addition to that, they
may make a Sai-kokoku appeal to the Supreme Court from an order dismissing an appeal only on
limited grounds.
3. Others
a. Referral to Prefectural Governor or Chief of Child Guidance Centre
When the Court thinks that it is more appropriate for the juvenile to be treated under the Child
Welfare Law rather than a protective measure under the Juvenile Law, it may refer a case to thePrefectural Governor or the Chief of the Child Guidance Centre for his/her administrative guidanceor supervision. However, this is only available for juveniles under the age of 18.
b. Sending of Cases to Public Prosecutors
Family Courts may transfer cases to public prosecutors for criminal prosecution in the same manneras adult criminal cases, when they conclude that criminal punishment is more appropriate for ajuvenile who is not less than 14 years of age. Before this decision, the Family Court considers suchfactors as the gravity and circumstances of the offence, the juvenile’s culpability, and the record ofprevious delinquency. Possible situations for which a case may be sent to a public prosecutor include:(1) when the juvenile’s culpability is so advanced that protective measures cannot improve thejuvenile; and (2) when the presumed criminal punishment is the imposition of a fine.
Juveniles who have reached adulthood during the proceedings of the Family Court must be sent to
the public prosecutors for that reason.
F.

Actual Situation of Disposition

According to the White Paper on Crime 2000, the total number of delinquents adjudicated by the
Family Courts in 1998 was 285,415. The final disposition by the Family Courts is broken down as follows:
1. Dismissal without Hearing
2. Dismissal after Hearing

138,063 (48.4%)
71,095 (24.9%)— 86 —

3. Probation Order
54,545 (19.1%)
4. Commitment to Support Facilities for the Development of
Self-sustaining Capacity or Homes for Dependant Children
343 (0.1%)
5. Commitment to Juvenile Training Schools
5,485 (1.9%)
6. Referral to the Prefectural Governor or the Director ofChild Guidance Centre
170 (0.1%)
7. Referral to Public Prosecutors (suitable for criminal punishments) 11,218 (3.9%)
8. Referral to Public Prosecutors (age of 20 and over)
4,496 (1.6%)
The breakdown of juvenile delinquents by offence is as follows:
1.
2.
3.
4.
5.
6.
7.

G.

Violations of the Road Traffic Law
93,142(32.6%)
Larceny
92,253 (32.3%)
Traffic negligence
37,849(13.3%)
Embezzlement
32,332 (11.3%)
Bodily Injury
8,644 (3.0%)
Extortion
5,372 (1.9%)
Violations of the Law for Control of Poisonous and Powerful Agents 3,386 (1.2%)

Juvenile Criminal Cases
1. Sending of Cases to Public Prosecutors
Upon receipt of a juvenile case from the Family Court based on the reason that the juvenile’s
culpability is so advanced that protective measures cannot improve the juvenile, the public prosecutor
is obliged, in principle, to prosecute the case in the criminal court as long as he/she believes that there
exists sufficient suspicion to support prosecution. This situation is an exception to the discretionary
power of the public prosecutor.
2. Exceptional Provisions
There are several exceptional provisions concerning juvenile criminal cases, some of which are as
follows:
a. In the case that a person who is under 18 years of age at the time of an offence is to be punishedwith death, he/she shall be sentenced to a penalty of life imprisonment. Penalty for life can be
mitigated to imprisonment with or without labour for not less than 10 years nor more than 15
years.
b. In the case that a juvenile is to be punished with imprisonment of which the maximum period ismore than three years, he/she shall be given an indeterminate sentence which prescribes the
maximum and minimum periods within the limit of the said penalty. However, in the case where
he/she is to be punished with a penalty of which the minimum period is more than five years, theminimum period shall be reduced to five years. The minimum indeterminate period of
imprisonment is five years and the maximum indeterminate period is 10 years for a juvenile.
These provisions concerning indeterminate sentences are not applicable when the Court grants
suspension of execution of sentence.
3. Transfer of Cases to the Family Court
The Juvenile Law states that in the case that a criminal court deems it proper, as the result of the— 87 —

examination of facts, that an accused juvenile shall be subject to protective measures, it shall, by aruling, transfer the case to a Family Court.
The existence of both systems may appear to be contradictory, namely that the Family Court can sendcases to a public prosecutor and that the criminal court can transfer the cases to the Family Court.
However, the purpose of the system is to ensure the most appropriate disposition for juveniles throughscrupulous and careful consideration.

III.

RECENT DEVELOPMENT OF JUVENILE LAW IN JAPANA.

Introduction

The juvenile justice system in Japan has been greatly discussed. Compared to other countries, thecentral characteristic is the continuous dominance of a paternalistic philosophy, although the Amendmentsof 2000 pose interesting challenges to this classical philosophy.
B.

History of Juvenile Law in Japan
1. Enactment of the present Juvenile Law
To understand the Amendments, it is advisable to have a brief survey of the history of the system andthe debate.
Until 1948, delinquent juveniles were treated in accordance with the Juvenile Law, which was enacted
in 1922 and put into effect in 1923. This old juvenile law separated the treatment and criminal
prosecution for juveniles from adults. It established Juvenile Tribunals to examine and decide on
those cases referred to them for protective rehabilitative measures. However, Japan rushed into theSecond World War before this old Juvenile Law had really became effective.
After the Second World War, Japan changed its legal frame-work as suggested by the General
Headquarters of the Allied Forces occupying Japan. In the late 1940s and early 1950s, fundamental
changes were brought about in the whole legal system including the juvenile justice system. In July
1948, which was exactly the time when the paternalistic philosophy was most dominant in the UnitedStates, the present Juvenile Law was enacted with reference to the juvenile justice system in the
United States, and was a complete revision of the old Juvenile Law. Although the law was draftedreferring to the American juvenile justice system as mentioned previously, it seemed to have fit
Japanese society very well. The judges, Family Court Probation Officers, and all people concernedwith juvenile justice have done their best to improve practices.
2. Discussion on Amending the Juvenile Law
From about the late 1950’s, offences committed by juveniles of the upper age group, 18 and older,became a serious problem in Japan. In 1977, the Justice Ministry’s legislative Council submitted
recommendations to the Minister of Justice that Juvenile Law be amended, in expanding theparticipation of public prosecutors in proceedings, implementing different treatment methods with theupper age group of juveniles, and so forth. However, there were strong objective opinions to thisrecommendation. For almost 20 years, reforms on the recommendation had not been realized, due
to the conflict of opinions. Meanwhile, the mainstream of juvenile delinquency in Japan shifted to
middle and lower age groups, i.e. from 14 to 17 years of age.
In 1993, there occurred the so-called Yamagata-Mat case, in which a junior high school student, 13— 88 —

years old, died having been bound up with a mat in the school gymnasium in Yamagata prefecture.
Seven students were suspected of assault causing death, and six of them were referred to the Family
Court. This was really a difficult case. The Court held a number of hearing sessions, and the fact
found by the Court was that three students assaulted the victim and the other three had not. The
former three appealed, and the High Court suggested, in the judgment, that the latter three had also
committed the assault. This case was widely reported, and frustrated society very much. The juvenile
justice system faced severe criticism that there is no guarantee that truth is found in the system, as
the juvenile justice system was so different from the criminal justice system. In addition to the
Yamagata-Mat case, there were also some cases reported in which fact-finding was difficult.
In 1997 there occurred the so- called Kobe case, in which a 14-year-old juvenile killed an 11-yearold boy in a very bizarre manner. This case made the headlines in the morning papers all over thecountry, and it was so shocking that tough opinions were expressed. In addition to the Kobe case,there were some other atrocious crimes committed by juveniles which were reported.
The Ministry of Justice started studying what measures should be taken to improve or strengthen thefact-finding functions of the Family Court after the Yamagata-Mat case. The Ministry drafted a billin 1999 to improve mainly the fact-finding functions following the recommendation of the Justice
Ministry’s legislative Council of 1999.
However, more than a few members of the Diet thought that the bill drafted by the Ministry was notenough because it did not meet the pressing demand to deter serious and atrocious offences
committed by juveniles. Thus a Project Team was organized in the Diet and members drafted a newbill to reform the Juvenile Law, based on the bill drafted by the Ministry, taking into account the
aspects of deterring serious offences and reflecting the increasing concern for victims’ issues.
The bill drafted by the Project Team was passed by the Diet in October 2000, and it came into effect
1 April 2001.
C.

The Amendments of 2000

The Amendments of 2000 consist of three components in accordance with the history with which thebill was drafted; i.e. it focussed on 1) the disposition policy of juveniles, 2) the fact-finding functions, and
3) due respect for victims. Some of the important points of these reformations are as follows:
1. Amendments to the disposition policy of juveniles•

According to the Amendments, the minimum age of a juvenile against whom a criminal
prosecution can be initiated was lowered to 14 years from the previous of 16 years. When ajuvenile is sentenced to imprisonment according to the above reform, he/she serves the sentencein Juvenile Training School if the correctional authority regards this to be proper.

•

The previous law stipulates that the Family Court shall refer cases to the public prosecutor on thebasis of the view that the minor should be subjected to normal criminal procedure due to theserious nature of the offence or the circumstances of the case. The Amendments added to thisprovision state that in a case where a juvenile, 16 years or older, commits an intentional offence
and this causes death of a person, the Family Court shall firstly consider criminal prosecution, i.e.
sending the case to the public prosecutor. However the Amendments to the provision also
stipulate that when the Family Court, after investigation, finds another disposition more proper
than criminal punishment, then it shall exercise its discretion not to send the case to the publicprosecutor.

— 89 —

2. Improvement of fact-finding procedures•

The Amendments introduced a collegiate body of three judges to juvenile justice, in order to deal
with difficult cases.

•

On the one hand a hearing procedure without the public prosecutor and an attendant who is alawyer (hereinafter referred to as lawyer attendant) would have some difficulty in examining thecase from every angle, especially in cases where the juvenile denies the fact. On the other hand,in such cases, the Court does not want to give the impression to the juvenile that the Court ishostile to him/her since the Court’s function is to give educative cautioning or guidance after
finding he/she has committed an offence.
The Amendments introduced the procedure where the public prosecutor and the lawyer attendant
attended hearings in certain cases. When the Court deems that the above new procedure issuitable, it decides to have the prosecutor attend the hearing, and if the juvenile has not retained
a lawyer as an attendant, the Court has to appoint a lawyer as an attendant.

•

According to the previous rule, a period of detention in the Juvenile Classification Home should
not be over 2 weeks, and if necessary it is permissible to prolong their period by another 2 weeks
at the Family Court’s discretion. The Amendments accepted that if the Court takes steps to
examine evidence, such as calling a witness to fact, then the Court could prolong detention byanother 2 weeks twice (i.e., the maximum term is 8 weeks).

3. Due respect for victims
In Japan, criticism that victims have not been treated properly in criminal procedure stimulated the
new legislation of 2000, i.e. the laws for the protection of crime victims. The Amendments of theJuvenile Law of 2000 also considered the proper treatment of victims in the juvenile field. It includes
the following:•

The victim of the incident can inspect or copy the documents relevant to the accused fact.

•

The victim can state his/her opinion of the case in the procedures.

•

The victim shall be notified of the Family Court decision.

4. Effects of the Amendments on the Juvenile Justice System in JapanThe effects the Amendments will have on the practices of juvenile justice in Japan are difficult topredict. However, at least the following can be pointed out.
It is certain that the procedure for the improvement of fact-finding functions will be applied to limited
cases, i.e. serious offences and, at the same time, when the Court is facing difficult problems in factfinding. Accordingly most cases are heard without the public prosecutor attending. It is often pointed
out that one of the most characteristic features of the Japanese judicial system is the strong will toascertain the truth. The Family Court is expected to probe into the facts of serious juvenile cases.
The Amendments expressed in the new procedure will help the Court to find facts so that the findings
by the Court will get more credibility from society.
The effect of the Amendments to the disposition policy is more delicate. The provision does not statethat all serious cases have to be referred to the public prosecutor and put under criminal sanction.
The Family Court still has wide discretion and consequently heavy responsibility to exercise that— 90 —

discretion. I should also add that if a juvenile case is referred to the public prosecutor, and thejuvenile is tried before the Criminal Court, the sentences the juvenile will receive from the Criminal
Court is more lenient and educative than those for adults, as is typically seen in the indeterminate
sentence system. The prison system of Japan also generally lays emphasis on rehabilitation. It is,therefore, misleading to simply describe the new Japanese disposition policy as tough justice.
As for the Amendments regarding victims, it is sure a step to enhance the victim’s rights.
These analyses lead us to the conclusion that the strong character of paternalism in the Japanese
juvenile justice system will be maintained, but the Family Court has to be more sensible in the effects thatcase dispositions can have on society including victims. The juvenile justice system should be designed toharmonize the needs and interests of juveniles, victims, and society. Although the Amendments were thefruits of discussion brought about by some domestic cases, and elaborated by recent political circumstances
in Japan, the Japanese experience provides some useful information.

— 91 —JUVENILE who is likely tocommit an offence

JUVENILE who has committed
an offence (14 — 19 years old)

(18—19years old)

Judicial Police Officer(14—17
years old)

Family Court
Probation Officer

Other Person

JUVENILE who has violated
penal provisions or who is likely
to violate them
(under 14 years old)Child GuidanceCentrePublic Prosecutor
Measures
underChild Welfare
Law

FAMILY COURT

Investigation

Detention and Shelter Care

Hearing

Tentative Supervision by
Family Court Probation Officer

EDUCATIVE MEASURES
Referral to Public
Prosecutor for
Criminal
Proceeding

Dismissal without
Hearing

Dismissal after
Hearing･ Probationary Supervision･ Childrens Homes or Homes
for Resocialization of Minors･ Juvenile Training School

Referral to Child Guidance Centre— 92 —

THE ROLE OF FAMILY COURT PROBATION OFFICERS IN JAPANMr. Kazuaki HASHIMOTO
Senior Family Court Probation Officer,
Osaka Family Court

I.

Introduction

In Japan, the family court is a special court dealing with family affairs and juvenile delinquency cases.
The family court system is organized with judges, secretaries and clerks. In addition, approximately 1500
family court probation officers are assigned to these courts. I am going to tell you about the role of thefamily court probation officer in Japan. There are 4 main points. The first is an outline of the family court
probation officer. The second, features of educational action by the family court probation officer. The third,
I would like to state my opinion about the role of the family court probation officer. And lastly, I would liketo talk about future prospects of the Japanese Family Court.

II.

An Outline of the Family Court Probation Officer

The position of Family Court Probation Officer was created on June 1, 1954, unifying the functionsof the Juvenile Protection Officer and the Family Affairs Investigation Officer. The post of this Juvenile
Protection Officer was set up on January 1, 1949, and that of the Family Affairs Investigation Officer on
April 1, 1951. The reason for establishing these two separate posts with essentially the same functions had
been only historical. The unification materialized as a large step forward for achieving one of the Family
Court’s goals, i.e., a comprehensive settlement of family problems regardless of whether the mostconspicuous symptoms happen to be domestic relations or juvenile cases.
Most of the family court probation officers have degrees in psychology, pedagogy and sociology.
After being appointed, they serve a 2-year apprenticeship, and during this period they take a training course
at The Research and Training Institute for Family Court Probation Officers (set up in 1957 by the Supreme
Court) in order to improve their knowledge and skills in the human sciences such as medical science,
psychology, sociology, pedagogy, and economics. The Institute also offers advanced courses to senior family
court probation officers. Furthermore, the curriculum includes psychological testing or therapeuticinterviews, and several programs on special topics such as school violence, substance abuse, developmental
disorders and attention deficit hyperactivity disorder.
The family court performs both judicial and welfare functions. Family court probation officers playa more important part in the welfare function. The family court probation officer, who is working on ajuvenile case, is commanded by a judge to investigate the juvenile from a scientific standpoint. Theirinvestigation begins by inviting the juvenile and custodian to court. Family court probation officers begin
the investigation by hearing each case and search as to a cause of the misdeed, the character of the juvenile,
his / her behavioral tendencies, life history and environment (i.e., home, school, place of work, friends andacquaintances). They listen to juveniles and their parents carefully, patiently, and empathetically. They also
attempt to establish a positive relationship and focus on their needs and concerns. At times, as occasion
demands, they may use psychological tests to evaluate a juvenile’s outlook and to explore their potential.
The family court probation officers examine all pertinent issues whether they are objective or subjective.
The family court probation officers then report on the investigation’s results, which then play a significant
role in deciding the most effective and proper means of treating the juvenile.
The purpose of the family court probation officers’ investigation is an attempt to predict the— 93 —

possibility of the same misdeed. Family court probation officers visit the area, the school and the homewhere the juvenile lives in the process of this investigation, and there can be an assessment of theinformation and an understanding of the reality of the juvenile.
We call such an investigation a “social investigation” and distinguish between this investigation anda “legal investigation” from the standpoint of the law which a judge does. This “social investigation”
constitutes a main part of the scientific investigation in the family court.

III.

Features of Educational Action by Family Court Probation Officers

In 1999, according to the Annual Report of Judicial Statistics (table 1), we can find that about 60%
of cases were decided by being dismissed without hearing or dismissed after hearing. Most of all juvenile
cases are investigated by family court probation officers. In the process of the investigation, juveniles areoffered educational treatment. Judges decide when no additional educative measures seem to be needed.
Therefore, the percentage of dismissals is higher. Such educational action is expected to prevent therepetition of offenses and avoid the negative effects of stigmatization and contribute to the sounddevelopment of juveniles.

A.

Educational Action Followed by Dismissal

There are various approaches to educative action. For example, they include: (1) interviews; (2)lecture classes; (3) community service work; (4) camps for training activities. A brief explanation is asfollows.
(1)

Interviews (Therapeutic Interviews, Intervention and Consultation)

Family court probation officers use some psychotherapeutic techniques that can help juveniles and /or their parents have an insight, as well as greater knowledge of their abilities to resolve their problems, andalso explore appropriate ways of problem-solving. The types of psychotherapy, which family court probation
officers apply, vary according to the aims and conditions of the interview. The most important technique inall kinds of psychotherapy is the skill of “active listening”, for example; looking, nodding, summarizing,clarification, re-framing, positive-feedback, eye contact, allowing silence, and so on.
On the other hand, family court probation officers have to teach juveniles the legal and social systemused to deal with crime and delinquency. In this case, family court probation officers also use
psychotherapeutic skills so that juveniles can acknowledge their responsibility and be encouraged toovercome the disadvantageous results of their behavior. If their parents have lost confidence in guiding theirchildren, family court probation officers can assist them, too.
In some instances, family court probation officers intervene in the juveniles’ lives and give them somespecific advice and instruction. For example, some juveniles tend to give up the idea of continuing schoolingor obtaining employment as the result of “mental stigmatization”, or labeling himself or herself as a“problem child”. If juveniles are pessimistic about their future, family court probation officers duly
concentrate on their strengths, and encourage them not to abandon hope. If dropping out of school or
employment is likely and this is likely to cause more delinquency, family court probation officers may
instruct them not to play truant or to get a job, and follow a juvenile’s progress in this regard. At times,
family court probation officers may intervene between juveniles and their schools.
Restitution is another example, If restitution has not been achieved, family court probation officers
may recommend that youth offenders and their parents take action to compensate or determine a plan for— 94 —

restitution, on the grounds that restitution could be a way of increasing an offender’s understanding of real
loss or harm to the victim.
(2)

Lecture Classes

For example, a juvenile who has driven a motorcycle without a driver’s license would be assigned toa traffic lecture class. In that class, audio-visual teaching materials, such as educational videos and articles
about accidents, are utilized. Similarly, those who have abused glue would be given lectures on the dangers
of glue sniffing. In these classes, the medical officers of the family court do a thorough health check of thejuvenile, and comment on the pharmacological actions of various drugs. The family court probation officers
examine their knowledge of drugs and investigate their drug dependency. The family court probation officers
also let juveniles think about how to recover for themselves.
(3)

Community Service WorkIf appropriate, family court probation officers arrange for juveniles to experience a volunteer job. The
purpose of this arrangement is to provide an opportunity for juveniles to help others, but not to inflictpunishment on them. In other words, the order to perform community service work is made as an
educational and restorative measure rather than one of punishment. Most of the community service work
arranged for juveniles is carried out at old peoples’ homes, nurseries and institutions for handicapped people.
(4)

Camps for Training Activities

Short-term camps are arranged for those who seem to have problems in their interpersonal
relationships or lack adequate social skills. So far, few family courts in Japan have implemented thisprogram. In this program, the juveniles go through various groups, assertiveness training, social skills
training, sensitivity training as well as some recreational activities.

B.

Educational Action in Tentative Probationary Supervision

If the family court finds it improper to decide a final disposition, tentative probationary supervision,or intermediate disposition, can be ordered. Ordinarily, tentative probationary supervision is adopted when
the probability exists that juveniles may reform and improve within society if appropriate educational action
is taken. The family court then decides a proper final disposition after considering the result of the tentative
probationary supervision.
Typically, the juvenile is placed under tentative probationary supervision for a reasonable term (fromabout four to six months). During this period, the family court probation officer meets the juveniles and theirparents at regular intervals and devises various educational methods. Sometimes juveniles under tentative
probationary supervision are sent to a suitable institution, agency or individual. Some run businesses suchas restaurants, transportation businesses, construction firms, and so on. Some are run by social welfareorganizations. In any case, most of them are private institutions, and their staffs voluntarily guide thejuveniles.

IV.

Role of Family Court Probation Officers

Family court probation officers investigate under the orders of a judge. In the investigations, family
court probation officers gain a lot of information mainly through interviews with juveniles and their parents.
Sometimes, they use many kinds of psychological tests in order to have a more detailed knowledge about
their psychological states. The purpose of the investigation is, of course, understanding the delinquency fromall directions, and choosing the most adequate treatment.
— 95 —

By the way, probation officers are not only in family courts, but also in probation offices. The
technical official in a juvenile classification home is similar to a family court probation officer. The big
difference between family court probation officers and those in other institutions is the content of theinvestigation. Family court probation officers investigation is not only about the juvenile’s personality andbehavioral tendency, but they also address the social investigation such as the home, school and working
place environment. Family court probation officers can take part in treatment more closely than otherprobation officers. The typical example is educational action that is given by family court probation officers.
There is another important difference. The family court is established as a court not only for juvenile
delinquency but also for domestic affairs. And the reason why juvenile cases are treated in family courts isthat juvenile delinquency is mostly related to domestic problems. For the improvement of juveniles,
solutions to family problems are strongly needed. For example, if there is a juvenile whose parents are about
to divorce and the conflicts in the home adversely affect their emotions, the solution of the parents’relationship might be very important for the juvenile’s recovery. Another example is a juvenile who commits
delinquency repeatedly because of his parents’ ill-treatment. Then the ill-treatment itself should be taken up
as a problem to be solved first. Therefore probation officers in the family courts have widely organizedprofessional knowledge and the skills of sciences related to human beings. They demand solutions to bothjuvenile cases and domestic cases.
In Court, there are many occupations other than the judge’s; that is; the secretary, the clerk, etc.
Recently, it is important to be clear about what the role of each occupation is. The judge is literally “a judge”
who makes decisions. And the secretary is said to be a “court-manager” who is in charge of the preparationand custody of official documents such as case records. The secretary is responsible for legal research forthe judges to whom they are assigned. But there is no definitive view about what a family court probation
officer is yet.
When somebody asked me in the past, I answered that the family court probation officer had to becalled a “court-player”. Everybody didn’t agree with me at that time, because they thought I meant “court”
as in “tennis court”. Which was true. Still I believe that the family court probation officer is a “court-player”.
The Family Court has different functions from that of the District Court or the Summary Court. One of themain characteristics is that there are probation officers in it. Family court probation officers use a variety ofscientific knowledge and skills to collect much information about juvenile cases, not only in the court, butalso in their home or in their communities. The family court probation officer looks like a tennis player
running around the “tennis” court. In addition, I think a tennis player hitting a ball smashed by anotherplayer is similar to a family court probation officer searching for problems experienced by juveniles. This,I believe is the “role as a player”. Family court probation officers must be court players, and he must havethe knowledge, wisdom, mobility and maturity of a specialist.

V.

Future Prospects of the Japanese Family Court

In Japan, the number of juveniles who were arrested for criminal offenses peaked in 1951, 1964, and1983. It showed a decreasing tendency thereafter, but it has been increasing since 1996 and started
decreasing in 1999.
Recently offenses of a serious nature like robbery occur frequently and a lot of people insist that there
should be more severe measures even in juvenile cases. Cases where juveniles deny their delinquency havebeen increasing. Then, family courts often have taken pains to examine whether the delinquent fact could
be proved. In such situations, public opinion for amending the Juvenile Law has been getting stronger andstronger. Therefore the Juvenile Law was revised on April 1, 2001.
There are 3 main points to the Amendments. The first is a greater weight given to the due process of— 96 —

proving facts. The second, the re-examination of measures in juvenile delinquency cases. And lastly, to havea much better understanding of the victim.
The family court has to review this social movement carefully and use these amendments of theJuvenile Law sincerely. However, most juvenile delinquents come from homes which suffer from domestic
disputes or conflicts, and they need education and protection while they are rehabilitated. I, as a family court
probation officer investigating juvenile cases, can find a lot of points where they are different from grownup criminals. One of them is, there is the possibility of true rehabilitation. That is true even if the case wasvery serious. And another point is that delinquent juveniles are easily affected by the environment; if theenvironment is changed correctly, they can often improve their behavior. Just like during a water and soil
shortage, no grass can grow in an undesirable environment, juveniles cannot grow without a sound mind.
It is not rare that once a good environment is provided, they begin to grow towards positive socialization.
Therefore, the family court has to investigate more substantially and choose an appropriate treatment once
if understands a juvenile’s character.
Finally, as one of the measures in the prevention of juvenile delinquency, the whole of society inJapan must prevent child-abuse by parents or other adults. Recently in Japan, child-abuse cases have beenreported often, and it has become a big social issue. Child-abuse itself did not begin recently. But, I
recognize, it is time to think again about child-abuse issues, one by one. Therefore, in Japan, adding to theChild Welfare Law, the Law for the Prevention of Child-Abuse was enacted. It has been in force since
October 2000.
The relationship between child-abuse and delinquency has been pointed out a long time ago, but themeasures have not been efficient. For example, juveniles who have been suffering physical abuse from theirparents or other familiar adults for many years since childhood often commit violence in their adolescence.
In other cases, a girl who has been sexually abused by her father tends to think of her own body as
unimportant and she often becomes drug dependent or sexually promiscuous. Thus, it is confirmed thatmany causes of delinquency are related to child-abuse from their parents or other familiar adults in theirchildhood. But in almost all of these cases, appropriate measures were not taken, at the right time when they
were suffering. Therefore, the prevention and punishment of child-abusers is needed for the prevention ofjuvenile delinquency.
In the family court, the judge can decide upon steps to deprive parents of their parental authority,refuse visitation rights to their children, and send the child to a protective institution for abused children
against the parent’s wishes. The family court is one of the most important institutes concerning theprevention of child-abuse. The same for juvenile delinquency, the whole of society expects a lot from thefamily court, and requests a much more positive and speedier resolution for child-abuse cases.
Therefore to save children’s lives, the family court must keep trying to decide upon appropriate
measures. The family court probation officers are on a special mission to prevent child-abuse.

— 97 —

— 98 —

42,095
8,005
5,113
616
30
13,764
1,250
47
84
390
1,771
239
8,687
664
333
793
261
41,384
1,121
53,482
636
231
273
29
785
173
3,553
1,849
7,529
872
111,112
119,513
78,129101,065
220,578

100
100
100
100
100
100
100
100
100
100
100
100
100
100
100
100
100
100
100
100
100
100
100
100
100
100
100
100
100
100
100
100
100
100
100

Total Number of juvenile
delinquents

(1)
Total
1,674
885
485
11
2
1,383
493
21
39
257
810
21
31
7
67
26
49
61
91
353
39
6
1
0
357
1
188
67
659
157
4,220
5,036
4,975
541
5,577

(A) : obstruction of the performance of official duties(B) : bodily injury through negligence in the conduct of one’s occupation(C) : Law for Punishment of Acts of Violence, etc.
(D) : Immigration-Control and Refugee-Recongnition Act(E) : Law for Control of Poisonous and Powerful Agents* Kinds of juvenile delinquency

TOTAL

Theft
q
Bodily injury
Extortion
Violence
Intimidation
SUBTOTAL w
Robbery
Killing
Arson
Rape
SUBTOTAL e
Fraud
Embezzlement of lost articles
Purchase/Receipt of stolen goods
Obscenity
House-breaking(A)(B)
othersSUBTOTAL r(C)Firearms and Swords Control Law
Minor offense
Anti-Prostitution Law
Stimulant Drugs Control Law(D)(E)
othersSUBTOTAL t
Pre-definduency y
SUBTOTAL 1: (q+w+e+r)
SUBTOTAL 1: (q+w+e+r+t+y)
SUBTOTAL 2: (SUBTOTAL1–(B))
Road Traffic Law

Kind of Juvenile Delinquency
4.0
11.1
9.5
1.8
6.7
10.0
39.4
44.7
46.4
65.9
45.7
8.8
0.4
1.1
20.1
3.3
18.8
0.1
8.1
0.7
6.1
2.6
0.4
0.0
45.5
0.6
5.3
3.6
8.8
18.0
3.8
4.2
6.4
0.5
2.5

%
0.2
0.6
0.4
0.3
0.0
0.5
0.5
4.3
0.0
1.0
0.7
0.4
0.1
0.0
0.6
0.3
0.0
0.0
0.4
0.0
0.5
0.4
0.0
0.0
0.0
0.0
0.4
0.0
0.3
12.3
0.2
0.3
0.4
0.0
0.1

%

(3)
Total
6,823
3,041
1,883
98
9
5,031
591
9
24
87
711
71
363
50
131
161
148
8,114
359
9,397
223
36
13
14
347
0
995
638
2,266
292
21,962
24,52016,406
29,57054,090

%
16.2
38.0
36.8
15.9
30.0
36.6
47.3
19.1
28.6
22.3
40.1
29.7
4.2
7.5
39.3
20.3
56.7
19.6
32.0
17.6
35.1
15.6
4.8
48.3
44.2
0.0
28.0
34.5
30.1
33.5
19.8
20.5
21.0
29.3
24.5

(4)
Total
82
14
10
2
0
26
1
0
3
0
4
0
8
1
0
4
0
0
2
15
0
0
0
0
0
0
2
0
2
54
127
183
183
0
183
0.2
0.2
0.2
0.3
0.0
0.2
0.1
0.0
3.6
0.0
0.2
0.0
0.1
0.2
0.0
0.5
0.0
0.0
0.2
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.1
0.0
0.0
6.2
0.1
0.2
0.2
0.0
0.1

%

(5)
Total
191
104
29
7
0
140
45
11
2
28
86
8
18
2
8
10
3
2,244
33
2,326
10
5
0
1
34
1
66
76
193
0
2,743
2,936
692
12,02914,965
0.5
1.3
0.6
1.1
0.0
1.0
3.6
23.4
2.4
7.2
4.9
3.3
0.2
0.3
2.4
1.3
1.1
5.4
2.9
4.3
1.6
2.2
0.0
3.4
4.3
0.6
1.9
4.1
2.6
0.0
2.5
2.5
0.9
11.9
6.8

%

The Annual Report of Judicial Statistics
(6)-1
(6)-2
Transfer
Total% Total% Total%7,921 18.8
25,304 60.100.0
2,407 30.1
1,505 18.80
0.0
1,412 27.6
1,271 24.9
0.0
219 35.6
277 45.00
0.0
12 40.0
7 23.30
0.0
4,050 29.4
3,060 22.2
0
0.0
89
7.1
25
2.0
0
0.0
3
6.4
1
2.1
0
0.0
13 15.5
3
3.6
0
0.0
13
3.3
1
0.3
0
0.0
118
6.7
30
1.7
0
0.0
60 25.1
78 32.60
0.0
965 11.1
7,297 84.00
0.0
80 12.0524 78.90
0.0
78 23.4
47 14.1
0
0.0
151 19.0
439 55.40
0.0
51 19.5
10
3.8
0
0.0
20,629 49.8
7,621 18.4
2,715
6.6
313 27.9
319 28.500.0
22,327 41.7
16,335 30.5
2,715
5.1
195 30.7
166 26.10
0.0
37 16.0
146 63.20
0.0
47 17.2
212 77.70
0.0
7 24.1
7 24.1
0
0.0
24
3.1
23
2.9
0
0.0
33 19.1
138 79.800.0
1,122 31.6
1,165 32.8
0
0.0
292 15.8
776 42.000.0
1,757 23.3
2,633 35.00
0.0
160 18.3
102 11.70
0.0
34,416 31.0
44,729 40.3
2,715
2.4
36,333 30.4
47,464 39.7
2,715
2.3
15,704 20.1
39,843 51.000.030,447 30.1
16,543 16.4
6,935
6.9
66,780 30.3
64,007 29.0
9,650
4.4

(1) : To commit the juvenile to a Juvenile Training School(2) : To commit the juvenile to a Child Education and Training Home or The Japanese Orhanage(3) : To place the juvenile under the probationary supervision of a Probation Office(4) : To place the juvenile under the child welfare office’s supervision of a Child Guidance Center(5) : To send the case to a Public Prosecutor(6)-1 : To dismiss the case after a hearing(6)-2 : To dismiss the case without a hearing* Disposition

(2)
Total
100
49
23
2
0
74
6
2
0
4
12
1
5
0
2
2
0
0
4
14
3
1
0
0
0
0
15
0
19
107
200
326
326
0
326

Table 1. Kinds of Juvenile Delinquency and Dispositions in 1999

THE ROLE OF THE FAMILY COURT IN THE ADMINISTRATIONOF JUVENILE JUSTICE IN KENYA
Hon. Justice Mr. Joyce ALUOCH
High Court Judge, Kenya

The Family Division of the High Court of Kenya became operational from 15th January, 2001, after
the launch by the Hon. Chief Justice in December, 2000.
Prior to the launch, the Hon. Chief Justice had appointed an administrative Committee to work
towards the establishment of the Family Division. The Committee held a work-shop which came up withvarious recommendations, one of which was to have a separate Juvenile Justice System in Kenya. This has
not been achieved and I think some of the reasons are, first because the Family Division is a very new
Division, and we are all in a learning process of how to go about things, and secondly, the decision lies with
the Hon. Chief Justice. Ours was a mere recommendation. Thirdly and most important is the Children’s
Bill which is currently in Parliament awaiting debate and which if passed could have facilitated the process.
I say this because the Children’s Bill makes provisions for “Children’s Court” in part VI thereof. The
Jurisdiction of such court’s will be both civil and criminal in nature. Section 69(d) proviso (iii) reads,“The Chief Justice may, by a notice in the Gazette appoint a Magistrate to preside over cases
involving children in respect of any area in the country.”
This by implication means that Children’s Courts will be manned by Magistrates. Appeals will lie
to the High Court and further to the Court of Appeal.
As the Family Division of the High Court is now functional, I can safely assume that such appeals
will lie to the Family Division of the High Court.
Otherwise at the moment, the Family Division of the High Court only has original jurisdiction incases under the Guardianship of Infants act, Chapter 144, Laws of Kenya. Jurisdiction under this Act islimited to the High Court only, and it is jurisdiction of a civil nature as opposed to criminal. The overriding
principle under the act which the court has to consider whilst making decisions is the “welfare of the infant.”
This principle has been inco-operated in the new Bill in Part II on “Safeguards for the Rights and Welfareof the Child”. Clause 3(2) provides“3(2) in all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies the best interest of the childshall be a primary consideration”.
Currently, the Family Division of the High Court exercises jurisdiction in the following matters
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)

Probate and Administration
Marriage Divorce and Judicial Separation
Division of Matrimonial Property
Maintenance and Alimony
Guardianship of Infants and persons under mental incapacity
Custody, adoption and legitimacy
Burial Disputes— 99 —

Jurisdiction of the Family Division is civil in nature. That is the jurisdiction it exercises whilst
handling matters falling under the seven headings listed above.
Though presently issues of juveniles are not specifically mentioned as issues being handled by the
Family Division it is obvious that during proceedings of Marriage and Divorce and or Judicial Separation,
the issue of maintenance of the children of the marriage must be gone into by the court. So the Family
Division, listening to such disputes must make appropriate orders for the maintenance of children, and alsoorders for payment of school fees to enable children to continue with their education even when there is adispute between their parents.
Cases of custody of children, adoption and legitimacy and Probate and Administration are also
handled by the Family Division.
Permit me to say that for the time being the Family Division of the High Court was launched in
Nairobi and it is operational in Nairobi where it has the principal Registry, manned by an experienced Senior
Deputy Registrar and about 8 or so other members of staff. Three High Court Judges are attached to theDivision.
As the Hon. Chief has stated publicly whilst officially opening work-shops or Conferences of the
Judiciary, the Family Division of the High Court will be created in every station where there is a High Court
Registry. But even before that is done, it is worth noting that even presently High Court Judges stationed
in different parts of the country do handle cases involving family matters. Magistrates also handle cases ofdivorce, separation and maintenance, adoption of children, and custody.
In the new Children’s Bill, the jurisdiction in Part XII on adoption of children will be exercised onlyby the High court. Presumably this should be the Family Division of the High Court. The Bill introduces
International adoption for the first time. This is not provided for specifically in the present Adoption Act,
Chapter, 143, Laws of Kenya. However, such adoption orders have in the past been made,“when the court is satisfied that there are special circumstances which justify, as an exceptional
measure the making of an adoption order”.
Broadly speaking, this is what I see as the Role of the Family Division of the High Court in the
Administration of Juvenile Justice in Kenya.
In conclusion, I would like to say that the Family Division does appreciate the plight of the mostvulnerable in society, i.e women and children and with the onset of the HIV/AIDS pandemic resulting in somany deaths, the Division has paid special attention to the Law of Succession.
The Kenya Women Judges Association in conjunction with CIDA – CANADA and the Judiciary hasorganised work-shops for Judicial Officers and paralegals handling Succession Causes. So far the workshops have covered Nyanza, Western and Central Provinces. The Rift Valley and Coast Provinces are yet
to be covered.
Judges and only Magistrates duly gazzeted to handle Succession Causes attend these work-shops andgo through the provisions of the Succession Act in an effort to fully understand the provisions and also agree
on a common approach to adopt in Succession Causes in order to achieve uniformity. These are actuallyworkshops for capacity building, to enable Judicial Officers and paralegals to serve the Kenyan public betterand in accordance with the Law.
The Succession Act is fairly technical in nature. The mode of litigation is by the use of set forms,
which are found at the back of the act. Litigants are required to complete the forms and then file them in— 100 —

the Registry. Most of the work is done in the Registry and also on the desk of the Deputy Registrar. The
Judge or Magistrate, as the case may be only gets “the tail end” of the whole thing.
Since its inception, the Family Division of the High court has tried to make this procedure cheap
simple and quick. We have made the forms available in the Registry at a nominal fee of Kshs.5/= per form.
A whole set of 7 forms which one requires to apply for a full grant of Letters of Administration plus thecourt order to issue the grant of Letters of Administration intestate, will cost a litigant a total ofKshs.2,350/=. The cost of advertisement in the Kenya Gazette costs Kshs.2,735/= and finally, theapplication for confirmation of Grant, plus the supporting affidavit costs Kshs.550/=.
In total, a litigant needs only Kshs.6,735/= to get a full grant of Letters of Administration issued andduly confirmed from the Family Division of the High Court.
This is what I mean when I say that the Division has tried to make litigation cheap, simple and quick.
Anybody comparing this with the fees charged by practicing lawyers will agree that the lawyers fee is toohigh and discourages litigants from coming to court.
For the short period the Family Division has been in existence we have found that most litigants inthe area of Succession are women, who come for legal documents for themselves and their children. We
are doing our best to cater for all Kenyans, in the Family Division of the High Court.

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THE ROLE OF THE JUVENILE COURT:IN THE ADMINISTRATION OF JUVENILE JUSTICE IN KENYA
Mrs. Scholastica OMONDI
Senior Resident Magistrate,
Nairobi Juvenile Court, Kenya

Honourable Judges of the Court of Appeal present here, Judges from the High Court, Fellow
Magistrates, Distinguished Guests from different Governmental Departments, Members from NonGovernmental Organizations, Participants, Delegates, Ladies and Gentlemen, I feel most honoured to beable to speak to you today on this important subject of Administration in Juvenile Justice in Kenya. May
I take this opportunity first and foremost to thank the organizers of this conference i.e. the Judiciary throughthe Training Committee and UNAFEI for having made it possible for all of us, stake holders in Juvenile
Justice to meet and deliberate on issues affecting our children. I have been asked to speak on The Role of
the Juvenile Court in the Administration of Juvenile Justice in Kenya.
The Juvenile Court is a Special Court created under section 3(1) of Chapter 141, Children’s andYoung Persons Act, which reads:“For the purpose of hearing all charges against persons under eighteen years of age, except in cases
where they are charged jointly with any person or persons over the age of eighteen years, and for the purposeof exercising any other jurisdiction conferred on Juvenile Courts by or under this or any other written law,
there shall be courts called Juvenile Courts constituted in accordance with the provisions of this section”
The Juvenile Court is therefore a Special Subordinate Court created for the purpose of hearing casesof children (upto age 18) who are in conflict with the law.
In determining such cases, the Juvenile Court follows the Adverserial Legal System in Kenya. The
charge is read to the subject in a language that he understands best, with the help of an interpreter. The
subject is expected to plead to the charge. Due to lack of legal representation, most children, having had
no legal advice before the plea, more often than not, plead guilty, and the court disposes of the case in oneof the several ways provided for by in section 25 of Cap 141, Laws of Kenya.
Where however, the subject pleads not guilty, the child is granted bond with a surety. The court does
not insist on security since most of these children come from humble families and cannot afford to raisesureties or cash bail.
The relatives of the child, if they can be traced, become sureties to the children and they do undertaketo bring the child to court when required to do so for hearings or mentions of their cases. The relatives
have been very co-operative with the courts and there have not been incidences where children released onbond have failed to turn up in court.
Once the case is listed for hearing, it takes a maximum of three months to dispose of the case. The
hearing of the evidence against the child is the most challenging task of a Juvenile Court Magistrate. Thisis because, the child, due to age and immaturity does not comprehend fully, (if any) the seriousness of theoffence he/she is charged with and the consequences.
The adverserial system is also not friendly to the child. The child does not know his/her rights during
the trial. The Trial Magistrate cannot therefore remain absolutely impartial during the proceedings.

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The Trial Magistrate must therefore explain to the child the proceedings and assist in probing thewitnesses, for clarification where necessary. Where there is a case to answer, the challenges of themagistrate are even greater. When the child is put on his/her defence, they are unable to answer the
allegations made out against them. The majority of them opt to keep quiet.
Whether a plea of guilty is entered by the child himself/herself or entered by the Magistrate after thetrial, the child’s case is disposed of in a reformative manner to help the child become a better person insociety, to reintegrate him, and to help him realize that what he did was wrong and that it should not be
repeated.
Apart from the criminal matters, the Juvenile Court also handles cases of Children in Need ofProtection and Discipline, as well as Protection and Care.
The Protection and Discipline cases are largely cases of children who have shown anti-social
behaviour, but have not yet come into conflict with the law. This is a way of preventing them from reachingthat stage. They include children who are trouble shooters in the community, those who refuse to go toschool, those who form groups which engage in activities that are not for their benefit. These children need
to be guided and counseled by social workers, under whose supervisor the court places them.
The Protection and Care cases include children on the streets for various reasons, orphans, abandoned
children, lost children, abused and neglected children. The Juvenile Court makes appropriate orders
depending on the nature of the case.
In cases of the abused and neglected children, two files may be opened and be heard in the same
Juvenile Court. There would be a file for the protection and care of the abused and/or neglected child, andyet another file for the charge against the person who neglected/abused the child. This therefore, is one
instance where an adult may be charged in the Juvenile Court, but nothing stops the charge from being heard
by the Ordinary Courts.
The trial of a child should be as private as possible, and the court must be cleared of all uninterested
parties before the proceedings begins. If possible, such proceedings should take place in the Magistrate’s
Chamber. The only people allowed to attend the trial are the child, the victim, their relatives, court officers
and any other person whom the court so allows.
Before a Juvenile Court makes a disposal order, it is necessary, that a Social Workers’ Report is
produced in court by the Children’s Officers or Probation Officers to assist the Magistrate to make a decisionin the best interests of the child.
What therefore are the various orders that the court may make? Section 17 of Cap 141 provides that
where a court is satisfied as to the guilt of a child, one or more of the following orders may be made:(a) Discharging the subject unconditionally or with conditions.
(b) Discharging the subject and requiring him to undertake to do or not to do certain things, and thismay be with or without sureties.
(c) He may be placed under the supervision of a Probation Officer.
(d) He may be committed under the care of a fit person who may be a relative or not, an Approved
Society or a Voluntary Institution, willing to undertake his care.
(e) If the offender is under the age of 16 years, he may be sent to an Approved School suitable tohis needs and attainments.
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(f) Ordering corporal punishment.
(g) By ordering the offender to pay a fine, compensation or cash or any or all of them. The offenderis made to pay back to the victim.
(h) By ordering the parent/guardian of the offender to pay a fine, compensation or costs.
(i) By ordering the parent/guardian of the offender to give security for his (offender’s) good
behaviour thereafter.
(j) Imprisonment.
(k) Where the offender is 15 years or more, he may be sent to a Borstal Institution.
(l) He may be dealt with in any other lawful manner. Here the magistrate has a wide discretion andcould for example place the child under community service – provided the child is over 16 yearsof age and the kind of work is not too demanding or too hard to be performed by the child. The
child must be able to learn some skill from the community service.
Provision (f) and (j) i.e. Corporal Punishment and imprisonment are controversial. The PendingChildren’s Bill attempts to outlaw them and so when the Bill becomes law, they will no longer be applicable.
Where a child is in need of Protection or Discipline, Section 25 (i) Cap 141 provides that the court
may:–

Order him to be returned to his parent/guardian or–Order his parent/guardian to execute a bond with or without sureties to exercise proper care, andguardianship or–

Commit him to the care of a fit person, whether a relative of the child or not, or an Approved
Society willing to undertake his care.

–Commit him under the care of a Local Authority, or a fit person, Approved Society or Voluntary
Institution willing to take care of him e.g. Non-governmental Institution.

–

The child may also be placed under the supervision of an Approved Officer, an Inspector ofChildren, a Children’s Officer or some other persons appointed by the court for a period notexceeding three years.

–

The child may also be sent to an approved school, if that would serve his interest

These orders may be varied, revoked or reviewed from time to time by the court on its own motion
or on the application of any person.
The Juvenile court therefore plays a very important role in the protection of children from abuse andor neglect. It is also important in trying to prevent children from committing crime, and for those who havealready come into conflict with the law, the court tries to ensure that they do not repeat the mistakes, byplacing them under the supervision of various Social Workers.
The facilities available at the Juvenile Court however, are not adequate to offer the children full
protection.

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There is for example only one Juvenile Court in Kenya, based in Nairobi. There is need to set up
similar Juvenile courts all over the country. With the support of all stakeholders gathered here today, we
hope that ad hoc Juvenile Courts will be transformed into Specialized Courts designed as Juvenile Courts,
so as to bring Juvenile Justice closer to as many children as possible.
It is my humble appeal to all stakeholders to assist in the setting up of these courts where possible,for child protection is everyone’s business.
Thank you all for listening to me.

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