International standards and obligations

Child-friendly justice and the CRC

Both the Convention on the Rights of the Child and its Optional Protocol on the sale of children, child prostitution and child pornography place obligations on States to follow the principles of child-friendly justice. Obligations under the CRC tend to be of a more general nature, while those under the OPSC are more explicit in their child-friendly justice aims. While the latter specifically address child victims of exploitation, there is no reason that these more detailed provisions should not be applied to all children, particularly as the adoption of the OPSC has confirmed States' ongoing commitment to child-friendly justice principles. The Committee on the Rights of the Child has also authored General Comments that clarify and elaborate on children's right to special protection in the legal system. The General Comment on children's right to be heard provides ample guidance on the implementation of child-friendly justice principles before, during and after legal proceedings, and the General Comment on juvenile justice applies these principles to children in conflict with the law. In addition, the General Comment on implementing the CRC emphasises children's right to access justice when their rights have been violated. Relevant provisions from the CRC and OPSC and illustrative extracts from the Committee's General Comments are presented below:

Convention on the Rights of the Child

Best interests: Article 3

  1. "In all actions concerning children...the best interests of the child shall be a primary consideration."
  2. "States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being...and, to this end, shall take all appropriate legislative and administrative measures."
  3. "States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities..."

Separation from parents: Article 9

  1. "States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine...that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence."
  2. "In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known."

The child's opinion: Article 12

  1. "States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child..."
  2. "For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body..."

Protection from abuse and neglect: Article 19

  1. "States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation..."
  2. "[P]rotective measures should...include effective procedures for the establishment of social programmes to provide necessary support for the child...and, as appropriate, for judicial involvement."

Refugee children: Article 22

  1. "States Parties shall take appropriate measures to ensure that a child who is seeking refugee status shall...receive appropriate protection and humanitarian assistance...."
  2. "For this purpose, States Parties shall...assist such a child...to trace the parents or other members of the family... In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment..."

Torture and deprivation of liberty: Article 37

"States Parties shall ensure that:

  1. No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment...
  2. No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
  3. Every child deprived of liberty shall be treated with humanity and respect...and in a manner which takes into account the needs of persons of his or her age. In particular every child deprived of liberty shall be separated from adults...and shall have the right to maintain contact with his or her family...;
  4. Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of...liberty before a court or other...authority, and to a prompt decision on any such action."

Rehabilitative care: Article 39

"States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child."

Administration of juvenile justice: Article 40

  1. "States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society."
  2. "To this end, and having regard to the relevant provisions of international instruments States Parties shall, in particular, ensure that...
    1. Every child alleged as or accused of having infringed the penal law has at least the following guarantees...
      1. To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance...;
      2. To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and...in particular, taking into account his or her age or situation, his or her parents or legal guardians;
      3. Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality...
      4. To have the free assistance of an interpreter if the child cannot understand or speak the language used;
      5. To have his or her privacy fully respected at all stages of the proceedings."
  3. "States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular...
    1. whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected."
  4. "A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence."

Optional Protocol on the sale of children, child prostitution and child pornography

Article 8:

  1. "States Parties shall adopt appropriate measures to protect the rights and interests of child victims...at all stages of the criminal justice process, in particular by:
    1. Recognizing the vulnerability of child victims and adapting procedures to recognize their special needs, including their special needs as witnesses;
    2. Informing child victims of their rights, their role and the scope, timing and progress of the proceedings and of the disposition of their cases;
    3. Allowing the views, needs and concerns of child victims to be presented and considered in proceedings where their personal interests are affected...;
    4. Providing appropriate support services to child victims throughout the legal process;
    5. Protecting, as appropriate, the privacy and identity of child victims and taking measures...to avoid the inappropriate dissemination of information that could lead to the identification of child victims;
    6. Providing...for the safety of child victims, as well as that of their families and witnesses on their behalf, from intimidation and retaliation;
    7. Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting compensation to child victims..."
  2. "States Parties shall ensure that, in the treatment by the criminal justice system of children who are victims..., the best interest of the child shall be a primary consideration."
  3. "States Parties shall take measures to ensure appropriate training, in particular legal and psychological training, for the persons who work with victims..."
  4. "States Parties shall...adopt measures in order to protect the safety and integrity of those persons...involved in the prevention and/or protection and rehabilitation of victims..."

Article 9:

  1. "States Parties shall take all feasible measures with the aim of ensuring all appropriate assistance to victims..." including their full social reintegration and their full physical and psychological recovery.
  2. "States Parties shall ensure that all child victims...have access to adequate procedures to seek, without discrimination, compensation for damages from those legally responsible."

Committee on the Rights of the Child General Comment No. 12 on the right of the child to be heard

"Article 12 [of the CRC]...specifies that opportunities to be heard have to be provided in particular in any judicial and administrative proceedings affecting the child". The Committee emphasizes that this provision applies to all relevant judicial proceedings affecting the child, without limitation, including, for example, separation of parents, custody, care and adoption, children in conflict with the law, child victims of physical or psychological violence, sexual abuse or other crimes, health care, social security, unaccompanied children, asylum-seeking and refugee children, and victims of armed conflict and other emergencies. Typical administrative proceedings include, for example, decisions about children’s education, health, environment, living conditions, or protection...

The right to be heard applies both to proceedings which are initiated by the child, such as complaints against ill-treatment and appeals against school exclusion, as well as to those initiated by others which affect the child, such as parental separation or adoption...

A child cannot be heard effectively where the environment is intimidating, hostile, insensitive or inappropriate for her or his age. Proceedings must be both accessible and child-appropriate.

Particular attention needs to be paid to the provision and delivery of child-friendly information, adequate support for self-advocacy, appropriately trained staff, design of court rooms, clothing of judges and lawyers, sight screens, and separate waiting rooms."

Read the full CRC General Comment No. 12

Committee on the Rights of the Child General Comment No. 10 on hildren's rights in juvenile justice

"[The CRC provides for] treatment that takes into account the child’s age and promotes the child’s reintegration and the child’s assuming a constructive role in society. This principle must be applied, observed and respected throughout the entire process of dealing with the child, from the first contact with law enforcement agencies all the way to the implementation of all measures for dealing with the child. It requires that all professionals involved in the administration of juvenile justice be knowledgeable about child development, the dynamic and continuing growth of children, what is appropriate to their well-being, and the pervasive forms of violence against children..."

Read the full CRC General Comment No. 10

Committee on the Rights of the Child General Comment No. 5 on general measures of implementation for the CRC

"For rights to have meaning, effective remedies must be available to redress violations. This requirement is implicit in the Convention and consistently referred to in the other six major international human rights treaties. Children’s special and dependent status creates real difficulties for them in pursuing remedies for breaches of their rights. So States need to give particular attention to ensuring that there are effective, child-sensitive procedures available to children and their representatives. These should include the provision of child-friendly information, advice, advocacy, including support for self-advocacy, and access to independent complaints procedures and to the courts with necessary legal and other assistance. Where rights are found to have been breached, there should be appropriate reparation, including compensation, and, where needed, measures to promote physical and psychological recovery, rehabilitation and reintegration..."

Read the full CRC General Comment No. 5