NGO ProBono.org’s One Child A Year campaign calls on lawyers to take on at least one case involving a child per year without costs. Shain Germaner reports.
Johannesburg - It could have been prevented. Doctors said Colin* will never have a normal bowel movement again.
At just 4-years-old, he was raped – allegedly by his own uncle – to the point of internal disfigurement. But Colin isn’t the only rape survivor in his East Rand family.
His two sisters, aged 5 and 7, were also raped two years ago, supposedly by the same person.
Police took months to take a statement from the family after the first incident, and the perpetrator was never arrested because a criminal case was never properly lodged.
And according to the magistrate overseeing the case, if a decent lawyer had assisted the family after the first rape, Colin would have been spared his harrowing ordeal.
The magistrate opened up about the case without full permission from her superiors because she wanted to be part of a campaign to encourage lawyers across the country to be more active in taking on cases concerning children – for free.
To this end, NGO ProBono.org held an introductory conference on the One Child A Year (Ocay) campaign last week, calling on lawyers to take on at least one case involving a child per year without legal costs.
This involves taking a personal interest in the case to ensure that even after court proceedings are completed, the lawyer maintains correspondence with the child and his/her family in case they need further legal advice.
If Colin’s family had a dedicated lawyer handling their children’s rape cases, actively helping – in and out of a courtroom – to ensure that police conduct a proper investigation, at least one of the crimes would not have happened.
This was why the magistrate decided to speak out and join the Ocay initiative.
But even though she fully supports the campaign, the magistrate warned that only the most dedicated legal professionals should sign up for a programme that would be beyond emotionally taxing.
“If you represent children, you have to be unshakeable. You are the one taking punches for the child… A child needs their own voice reflected through an attorney, you cannot be a timid person,” she said.
She detailed another case where a 12-year-old girl was raped by her father, the brutal assault witnessed by her mother. Police failed to arrest the father, but social workers intervened and took the child to a place of safety. The young girl was eventually taken to a hospital, where it was discovered she had developed epilepsy.
But doctors accidentally prescribed her with 20mg of medication, rather than the recommended 2mg, ultimately causing severe damage to her already fragile health.
“These children don’t have a parent to ensure these things don’t happen. A lawyer can make sure that the child receives antiretrovirals and pregnancy tests after the rape. The attorney has to find out why the father hasn’t been arrested. (Matters) like these must be pushed to ensure justice,” said the magistrate.
A top attorney at the Centre for Child Law, Carina du Toit, echoed the magistrate’s message that representing children is a complex, but incredibly necessary work. “You need a higher level of self-awareness and integrity. You need to be entirely unsentimental… You have to be able to make decisions beyond reproach for the child in court,” said Du Toit.
The attorney also detailed the role of a curator ad litem, someone assigned to represent the best interests of a person who lacks the mental capacity or maturity to make decisions for themselves. This position, sometimes assigned to family, friends or even a legal representative, holds much power over the individual.
She described her experience in dealing with an unqualified advocate who had assigned himself as the curator of a child. He eventually managed to get an order at the high court that prevented the mother from getting within 20km of her child, and the centre had to apply for another order to have the curatorship set aside. Du Toit said that in many cases, families can’t afford to oppose a wrongful curatorship, which is why campaigns like Ocay are a necessity.
Michal Johnson, an associate lawyer at Hogan Lovells, has also joined the ProBono cause, after dealing with numerous cases involving young children herself.
She said it was often her job to push overburdened prosecutors to move a case forward. When dealing with young children, Johnson said that sometimes other professionals were required to make a child feel comfortable enough to open up after a traumatic experience.
“A social worker or psychologist can help to ensure that we don’t ask leading questions or push our own ideas (of what happened),” said Johnson. She quoted case law from Judge Kathy Satchwell that stated that when dealing with a child, neutrality is not what to strive for.
“We have to fight for them,” said Johnson.
Law can hinder progress
South Africa has some of the most complex and protective sets of legislation when it comes to law surrounding children, but for one advocate of children’s rights, this complexity can sometimes be an obstacle to justice.
“We have litigated ourselves into lameness,” Luke Lamprecht, of the Joburg Child Advocacy Forum told The Star.
He has also lent his voice to the Ocay campaign, in a bid to recruit lawyers who will keep the children’s best interests at heart. The child development and protection consultant has pointed out some of the issues with the Children’s Act, the Child Justice Act and the Criminal Procedures Act.
He said that often, this legislation places more gatekeepers to basic services, such as medical care, especially for children who aren’t South African citizens.
He said the state does not allocate funds for the care of foreign or illegal immigrant children, meaning social workers will often not remove them from abusive situations.
He said the concept of “family preservation” has also been used as an excuse to leave children with their abusive parents, and only a select few children’s homes will take in psychologically damaged or disturbed children.
Lamprecht said that asylum seekers and their children will be denied access to hospitals because they are destitute and can not afford to pay medical bails. He said that these children are most in need of legal representatives to help push the Department of Home Affairs to provide identity documents so that they can attend school or gain access to healthcare.
Let no little one fall through the cracks
‘We want to encourage lawyers to keep tabs with a child for at least a year. We want them to monitor their well-being.”
This is the call by ProBono.org national director Erica Emdon, who has seen children fall through the cracks of a cavernous and complex legal system.
It’s all part of a new initiative that’s only been fully active since the beginning of the month, but one that will hopefully mean new hope for young victims of terrible crimes.
One Child A Year asks lawyers to not only represent at least one child a year for free, but to ensure that contact persists between the legal representative, the child and his/her family.
Even if court proceedings have been completed, ProBono’s campaign asks its members to remain in contact for at least a year to ensure the child doesn’t need any further legal help. “We are appealing to lawyers who are passionate about the rights of children as the programme requires long-term commitment,” said Emdon.
She said that even though such a commitment might be a lot to cope with for a lawyer with an already full portfolio, the organisation would recognise the achievements of those who participated each year.
“We want to prepare a booklet of the cases that are taken on, focusing on the attorneys and their challenges,” said Emdon. She said that the organisation would also like the help of psychologists and social workers willing to pledge their time to help lawyers and curators to connect with their young charges.
* Not his real name