Part VII of the Lukautim Pikinini Act 2015 consists of a single section, and it addresses a specific problem: a child serving a sentence in an adult corrective institution or held in a police lock-up.
Section 55(1) — the duty to apply
The Director shall, where he considers it to be in the best interests of the child, apply to the Juvenile Court to get an order to transfer a child from a Corrective Institution or Police lock-up to an institution or other places or persons appointed by the Director.
The judgment is the Director’s — but once formed, the application is mandatory. The Director cannot decide a transfer is in the child’s best interests and then leave the child where he is.
The application goes to the Juvenile Court, not the Family Court. That is consistent with section 119(b), which directs that where a child is the subject of a criminal proceeding, the juvenile justice legislation applies — now the Juvenile Justice Act 2014.
The Director learns of such children through the Office’s standing function under section 14(g) to inspect centres providing child care, jails and police cells.
Sections 55(2) and (3)
A child transferred shall remain in the care of the Director or the place or person to which the child is transferred for the balance of his sentence, and is subject to the discipline and routine of that home, place or person.
An order under this section is authority for the care of the child in a place or by a person to whom it relates until the expiration of the residue of his sentence.
The sentence is not shortened or set aside. The child serves the balance of it in the new placement, and is subject to the discipline and routine there.
What changes is the environment. A place appointed by the Director — an approved child-friendly place, or a suitable person — can offer education, care and supervision that an adult corrective institution cannot.
Subsection (3) supplies the legal authority for the receiving place or person to hold and care for the child. Without it, that person would have no lawful basis for keeping a sentenced child.
Subsection (5) preserves the position on remission: the section does not affect the operation of any law relating to the remission of sentences.
Section 55(4) — where the placement does not work
Where the Director is satisfied that a child who is transferred —
(a) is not profiting or benefiting from the discipline and instruction of the place or person; or
(b) for any other reason is not a suitable person for care in the place or by the person,
the Director may order the child to be transferred to a juvenile institution established under the juvenile justice legislation to serve the remainder of his original sentence, and the person ceases to be subject to this Act.
| Out — s 55(1) | Back — s 55(4) | |
|---|---|---|
| Who decides | The Juvenile Court, on the Director’s application | The Director, by order |
| Test | The best interests of the child | Not profiting or benefiting, or otherwise unsuitable |
| Destination | A place or person appointed by the Director | A juvenile institution |
| Sentence | Balance served in the new placement | Remainder of the original sentence |
Moving a child out of a corrective institution requires a court order. Moving the child back requires only the Director’s order.
The rationale is that the section 55(1) order created the placement, and section 55(4) simply ends it — returning the child to a juvenile institution, which is where a sentenced child would ordinarily be. The destination is a juvenile institution, not the adult corrective institution the child came from.
The closing words — “and the person ceases to be subject to this Act” — mark the handover: the child passes back into the juvenile justice system, and this Act’s care provisions no longer govern the placement.
Why Part VII exists
Section 5(1)(a) — the best interests of the child are paramount in all actions and decisions under the Act, and section 55(1) applies exactly that test.
Section 5(1)(b) — children have the right to be protected from all forms of abuse, neglect and maltreatment. A child held with adults is at obvious risk.
Section 5(1)(c) — equal opportunity and access to education, which a corrective institution is unlikely to provide.
Constitution section 36 — freedom from inhuman treatment; section 37(20) requires a person in custody to be treated with humanity and respect for the inherent dignity of the human person.
Part VII works alongside Part VIII, which governs children living in prison with their mothers and pregnant inmates, and requires the Director to review prison conditions at least annually under section 61. Where the child is placed with the Director, the section 52 responsibilities apply.
Sources
- Lukautim Pikinini Act 2015 — ss 5, 14, 52, 55–62, 119
- Juvenile Justice Act 2014
- Constitution — ss 36, 37
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.