Principles Of Restorative Justice

Introduction

Restorative justice is an approach to justice that has its focus on a wide range of human emotions such as healing, mediation, compassion, forgiveness and reconciliation. According to Jim Consedine, (1997; 184) it is an approach that focuses on three key components; the offenders, the victim and the community on the needs of the victim. The purpose is to repair the damage caused by the offender by providing a process of dialogue between the offenders, the victims, their families and community members. The restorative justice approach aims to provide opportunities for victims and community members to confront offenders in a constructive manner and provide the offender opportunities to take responsibility for their actions and be held accountable for harm caused. According to Batley, M. (2005) the approach is guided by the following three principles; criminal offences affect victims, offenders and communities at large therefore the criminal justice process should promote healing and reconciliation to rectify and restore broken relationships. Secondly, the process should not involve only the government but also the victim, the offenders, both their families and communities all should be actively involved in the criminal justice process. Thirdly, the government is responsible for preserving order while the community is responsible for establishing peace. Furthermore, according to the Restorative Justice Network (2003) restorative justice is considered restorative justice if it is guided by a competent and neutral facilitator to ensure safety for all participants. If it strives to be inclusive and collaborative, where all stakeholders who are affected are actively and voluntarily involved in the process and where confidentiality is well maintained. It is restorative when different cultures are recognised and respected and the focus is on the needs of all affected members. The key elements to restorative justice are; encounter reparation, reintegration, and participation. Bately, M. (2005)

The ecological systems model is a theory of development by American psychologist Urie Bronfenbrenner (917 - 2005) views an individual as the centre of a system that is affected by everything in their surrounding environment. The following systems surround the nucleus; Micro systems which are closest to the individual and has direct and immediate contact for example their families, friends, work/school and their communities. The Meso system refers to the interconnections between the different microsystems. The Macro system which is the largest refers to the cultural patterns, values, beliefs and societal structures that are held by the individual,Bernes R. N (2007). It is very important to involve families and the communities as they form part of the systems which affect the individual because in order for restorative justice to be served all systems involved must be included in the process.

Restorative justice is more suitable than the retributive justice which views punishment as an acceptable response to criminal offence. Retributive justice addresses criminal offence at micro level by involving only the offender and the justice system. At meso level, only decisions made during the interactions between the offender and the courts where sentencing and punishment takes place are considered. Whereas in restorative justice, the victim and their families have an opportunity to have an input in the decision-making. At macro level, only the values of the courts and those of the offender are considered, while the restorative justice processes consider the values of the families and communities.

This assignment will further discuss family group conferencing and describe the process of each stage including the involvement of all relevant role players. The facilitation of family group conferencing will also be discussed and its suitability to the South African context.

Family group conferencing

Restorative justice conferencing involves all direct stakeholders in determining how best to repair the harm of offending behavior (McCold and Wachtel, 2002). Family group conferencing is a process that involves the family in the decision-making process and is usually used in relation to child offenders. The process is victim orientated because it provides the victim an opportunity to be directly involved in the decision-making process in order to increase their awareness of the impact of their actions. The process of family group conferencing addresses the impact, encourages the offender to take responsibility through a dialogue with all parties involved.

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The stages of family group conferencing

Referral: is made by different professionals at micro level, the role players are the groups and individuals with immediate contact to the individual for example social workers, educators, health visitors, counsellors and families. The role of the social worker is to make certain that clients are referred to correct resources, to ensure effective communication with the facilitator of the conference. The role of the family is to make a decision about the referral and ensure attendance. The interconnection between schools and health visitors play a role in meso level for example when offence takes place at school (rape in schools), the school together with health clinics and families can be actively involved to ensure a successful facilitation process. At macro level, the cultural values and beliefs held by the family play a role in the type of referral therefore families should be offered the opportunity to request a facilitator who suitably reflects their ethnicity, language, religion or gender.

Preparation: at micro level, the facilitator contacts victim and the offender to assess the readiness of offenders and victims to encounter each other. The role of the facilitator is to seek voluntary participation and prepare the victims immediate and extended families, friends, neighbours and any persons providing counselling or assistance to the victim and offender. Then explain the process, send out invitations, negotiate times and dates and should be available to answer any question the family may have. At meso level each participant in the micro system is provided an opportunity to voice their concerns, expectations and needs through prep sessions and the social workers role here is to explore each participant’s motivation. During the prep sessions, a script to be followed is created which will detail who speaks first and this script should be structured in a manner that will give back power to the victim. At macro level, the facilitator liaises with relevant agencies to ensure families have appropriate information. The role of the family is to provide correct and relevant information and it is the facilitator’s duty to question the information.

Conference: during the actual conference the facilitator’s role involves giving information about the reasons for a conference, relevant resources and different support structures. At micro level, families, friends are all responsible to attend the conference and are given the opportunity to discuss in private after the process. They are responsible to open up and speak about events. The offender is responsible sharing the events of the offence as respectfully and honestly. Each member involved is then awarded the opportunity to share how the offence impacted on them. During the introduction phase it is the facilitator’s role to establish and maintain the conference process, to guide and support all participants. In this phase the facilitator welcomes each member as they arrive, discusses behavioural expectations such as mutual respect and allow each participant to introduce themselves. During the information sharing and discussion phase the facilitators role is to act as the mediator, the family’s role is to share their stories in relation of their involvement and to know what resources and support structures are available to them.

Family group conferencing in South African context

In South Africa the Inter Ministerial Committee initiated family group conferencing pilot programmes in Pretoria and Wynberg after being inspired by the New Zealand’s youth justice system. Authors Sloth- Nielsen, and Branken and Bately concluded that family group conferencing should be for intensive intervention only and not for petty cases. Reviews done by authors Branken and Bately (1998) discovered that programmes in Pretoria struggled with securing sufficient referrals and this was due to not having formal legislative framework for such programmes. Furthermore discovered was the issue of language barrier between the facilitators and participants in the conference however when it came to strengthening relationships and promoting healing the conference has been effective. In terms of cost benefits analysis, the conferencing would be cost-effective if minor offences were dealt with through life skills diversion programmes instead of using labour-intensive programmes such as family conferencing. In South Africa it was also discovered that the role players in the justice system lacked commitment and prosecutors were not making sufficient referrals this then revealed that prosecutors in South Africa are punishment orientated and lacked confidence in family group conference programme.

Conclusion

One of the principles of Restorative Justice is the involvement of all affected stakeholders such as victims, families, communities and the offenders in the process of justice where the offender is held accountable and takes responsibility for their actions. Family group conferences are programmes which are effective when all stakeholders take part and when the government prosecutors show commitment. Restorative justice can make a difference in dealing with children in conflict with the law because it utilises a program that is not punishment orientated but is rather victim and offender orientated. The purpose of family group conferences is to have all affected members to participate in the decision making process, to provide opportunities for offenders to become aware of the impact of their actions. The involvement of all systems is significant because as the ecological systems theory states that an individual is a centre piece of systems which all have an influence on each other. The role players each have their roles to play in the different levels of development, for example on micro level social workers play the facilitator role and at meso level they act as the mediator facilitating the interconnections between the systems. The restorative justice can make a difference in dealing with child offenders if only the government and its prosecutors can take programmes such as family group conferences seriously and commit to the process.

Bibliography

1. Batley, M. 2005. Restorative Justice in the South African context. In Beyond retribution: prospects for restorative justice in South Africa. Pretoria: Institute for Security Studies and Restorative Justice Centre. Available: http://journals.co.za/docserver/fulltext/ismono/2005/111/ismono_n111b.pdf?expires=1484302174&id=id&accname=58211&checksum=E7A3A6BC13E388645A9116845702670B [9 January 2019].
2. Branken, N. & Batley, M (1998). Family Group Conferences: Putting the wrong right. A Practice Research Study and Implementation Manual. The Inter-Ministerial Committee on Young People at Risk Pilot Project.
3. Dennis Sullivan & Larry Tiff (2006) Handbook of Restorative Justice
4. Sloth-Nielson, J (1996) Theory and Practice of Family Group Conferencing in South Africa: an Overview of General Principles and Report on the Pioneering Wynberg Pilot Project. Unpublished Social Justice Resource project, Institute of the Criminology University of Cape Town.