Section 39. PROCEDURE FOR TAKING THE CHILD INTO CUSTODY. From the moment a child is taken into custody, the law enforcement officer shall:

(a)Explain to the child in simple language and in a dialect that he/she can understand why he/she is being placed under custody and the offense that he/she allegedly committed;

(b)Inform the child of the reason for such custody and advise the child of his/her constitutional rights in a language or dialect understood by him/her;

(e)Properly identify himself/herself and present proper identification to the child;

(d) Refrain from using vulgar or profane words and from sexually harassing or abusing, or making sexual advances on the child in conflict with the law;

(e)Avoid displaying or using any firearm, weapon, handcuffs or other instruments of force or restraint, unless absolutely necessary and only after all other methods of control have been exhausted and have failed;

(f)Refrain from subjecting the child in conflict with the law to greater restraint than is necessary for his/her apprehension;

(g)Avoid violence or unnecessary force;

(h)Determine the age of the child pursuant to Section 7 of this Act;

(i) Immediately but not later than eight (8) hours after apprehension, turn over custody of the child to the Social Welfare and Development Office or other accredited NGOs, and notify the child’s apprehension. The social welfare and development officer shall explain to the child and the child’s parents/guardians the consequences of the child’s act with a view towards counseling and rehabilitation, diversion from the criminal justice system, and reparation, if appropriate;

(j) Take the child immediately to the proper medical and health officer for a thorough physical and mental examination. The examination results shall be kept confidential unless otherwise ordered by the Family Court. Whenever the medical treatment is required, steps shall be immediately undertaken to provide the same;

(k)Ensure that should detention of the child in conflict with the law be necessary, the child shall be secured in quarters separate from that of the opposite sex and adult offenders;

(l) Record the following in the initial investigation:

1. Whether handcuffs or other instruments of restraint were used, and if so, the reason for such;

2. That the parents or guardian of a child, the DSWD, and the PA0 have been informed of the apprehension and the details thereof; and

3. The exhaustion of measures to determine the age of a child and the precise details of the physical and medical examination or the failure to submit a child to such examination; and

(m) Ensure that all statements signed by the child during investigation shall be witnessed by the child’s parents or guardian, social worker, or legal counsel in attendance who shall affix his/her signature to the said statement.

A child in conflict with the law shall only be searched by a law enforcement officer of the same gender and shall not be locked up in a detention cell.

Section 40. DUTIES DURING INITIAL INVESTIGATION. The law enforce-ment officer shall, in his/her investigation, determine where the case involving the child in conflict with the law should be referred.

The taking of the statement of the child shall be conducted in the presence of the following:

(1) child’s counsel of choice or in the absence thereof, a lawyer from the Public Attorney’s Office;

(2) the child’s parents, guardian, or nearest relative, as the case may be; and,

(3) the MSWDO. In the absence of the child’s parents, guardian, or nearest relative, and the local social welfare and development officer, the investigation shall be conducted in the presence of a representative of an NGO, religious group, or member of the BCPC.

After the initial investigation, the social worker conducting the same may do either of the following:

(a)Proceed in accordance with Section 37 hereof if the child/minor is fifteen (15) years or below or above fifteen (15) but below eighteen (18) years old, who acted without discernment; and

(b) If the child is above fifteen (15) years old but below eighteen (18) and who acted with discernment, he/she must undergo diversion programs without undergoing court proceedings subject to the conditions provided for under Chapter 2, Title V of the Juvenile Justice and Welfare Act of 2006.