Guide for legal professionals

Children are being abused, neglected and ignored all over the world. Empowering children with their rights – rather than giving them charity – is the best way to stop child rights violations and the horrible consequences that follow. Children’s rights are human rights, but so often they are seen as less important. The law can be a potent tool for enforcing human rights, but the justice system can also cause some of the most devastating human rights violations. Courtrooms, police cells and interviews/interrogations, can be a very frightening, confusing and sometimes dangerous place for anyone, especially a child.

Members of the legal profession, namely judges and lawyers, are often the gatekeepers of human rights because their actions and decisions can ultimately determine whether an individual’s human rights are respected or abused.

A rights based approach involves prioritising human rights. It means working with and treating children in a way that not only doesn’t violate their rights, but actively promotes them. By employing a rights based approach to their work with children, lawyers and judges can help ensure children live with dignity and respect in an equal society.

The aim of this guide is to help judges and lawyers better understand the rights recognised for children in the Convention on the Rights of the Child (CRC) and to offer advice on how they can play a role in implementing them. The CRC covers all aspects of children's rights, including the administration of justice, and is therefore the key instrument for judges and lawyers around the world to enforce children's rights and to create broader changes in society.

The following sections explain the main articles in the CRC relevant to the administration of juvenile justice. The rights enshrined in the CRC are the foundations of children’s rights, so they must be in the minds of lawyers and judges at all times when dealing with children. It is important to note that there is no hierarchy of rights in the CRC, it must always be read as a whole.

Why should judges and lawyers use human rights standards?

Whether children come in contact with the law as victims, witnesses, offenders or complainants, it is equally important that they are met with a system that understands and respects both their rights and their unique vulnerability. This is sometimes referred to as "child-friendly justice".

Article 24(1) of the International Covenant on Civil and Political Rights (ICCPR) requires special "measures of protection" for children and therefore sets a prerequisite that children should always be met with a child-friendly justice system.

Read CRIN’s submission to ICCPR General Comment on Article 9 (liberty and security of person).

Article 40 of the CRC proposes a special approach: the establishment of laws, procedures, authorities and institutions specifically applicable to children in contact with the law up to the age of 18. This approach should be applicable to all children – including children accused of serious crimes. Article 40(2) provides the main rights and guarantees that ensure that every child accused of having infringed the penal law receives a fair treatment and trial. The article covers the rights for children in conflict with the law. It covers treatment from the moment an allegation is made, through investigation, progress, charge, any pre-trial period, trial and sentence.

The Committee on the Rights of the Child, in its General Comment No. 10 on children's rights in juvenile justice states:

"Article 40(2) CRC contains an important list of rights or guarantees that are all meant to ensure that every child alleged as or accused of having infringed the penal law receives a fair treatment and trial... [T]he Committee wants to emphasize the following: the key condition for a proper and effective implementation of these rights or guarantees depends on the quality of the persons involved in the administration of juvenile justice.... These professionals should be well informed about a child’s and more in particular on an adolescent’s physical, psychological, mental and social development, and about the special needs of the most vulnerable children.... Professionals and staff should act under all circumstances in a manner consistent with the child’s dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedom of others, and which promotes the child’s reintegration and the child’s assuming of a constructive role in society....A fair trial requires that the child alleged as or accused of having infringed the penal law be able to effectively participate in the trial, and therefore needs to comprehend the charges, and possible consequences and penalties, in order to direct the legal representative, to challenge witnesses, to provide an account of events, and to make appropriate decisions about evidence, testimony and the measure(s) to be imposed.... Taking into account the child’s age and maturity may also require modified courtroom procedures and practices."

Building on international children's rights obligations, child-friendly justice introduces principles that empower children to enforce their rights and encourages governments, courts, and law enforcement officials to develop policies that address children's precarious situation in the justice system.

Judges and lawyers can play a big role in minimising the challenges that children face at each step in each aspect of a legal proceeding, building confidence in the view of the justice system as a solution to children's legal issues, rather than another of an already long list of problems that usually accompany the child’s involvement with the justice system. Respecting child-friendly justice principles will not only eliminate many of the traumatic experiences children face in the legal system, it will foster greater respect for their rights by providing children the full access to justice they need to bring violations of these rights forward.

A rights based approach to juvenile justice requires that children must only be held in pre-trial detention as a measure of absolute last resort. Children who are detained must be brought before a court without delay.

Children's right to be heard

Article 12 of the CRC gives children the right to be heard in all the matters that affect them. For this to have any meaning, it is vital that the views of children are given due weight. More specifically, article 12 paragraph 2 states that the child "shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child". This covers a wide range of court hearings.

The Committee on the Rights of the Child, in its General Comment No. 12 on the right of the child to be heard emphasises:

"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."

Courts need to be adapted to enable children to participate. On that, the committee adds:

"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."

The right to be heard must be respected in all stages of the legal proceedings; this is fundamental for the guarantee of a fair trial. Many things need to be taken into account when children are involved with legal proceedings. In many jurisdictions for example, courts may be mistrustful of, or reluctant to accept evidence from children. It might be useful here for lawyers to try to figure out whether there are particular rules, procedures or practices in the relevant jurisdiction for dealing with evidence that is produced or presented by children.

Children and time commitment is another issue that needs to be taken into account. When involving children, it is important to be clear about both how long it can take before they get a final answer from the court and how unpredictable things may be along the way. Children often have many different obligations and schedules that change from year to year, so it can be difficult for them to make the kind of long-term commitments. Because of this, however, courts in some jurisdictions are able to "fast track" certain types of cases involving children, especially those that relate to family matters or claims of child abuse and neglect. It may be worth investigating whether there are rules or practices in the jurisdiction in which the suit is filed that would provide for a speedier resolution.

Read the UN Guidelines on Justice and Matters involving Child Victims and Witnesses of Crime.

Torture, degrading treatment and deprivation of liberty

Article 37 of the CRC provides the child the right to be protected from torture, and other cruel, inhuman or degrading treatment or punishment, capital punishment, life imprisonment without the possibility of release and unlawful or arbitrary deprivation of liberty.

The article sets out the conditions for the arrest, detention and imprisonment of the child: they should be in conformity with the law, used only as a last resort and for the shortest possible time.

Yet, in many countries, children can still lawfully be sentenced to inhuman sentencing. In some countries, child offenders can lawfully be sentenced to death by lethal injection, hanging, shooting or stoning; children as young as 10 can also be sentenced to life imprisonment and in at least 40 States, children can still be sentenced to whipping, flogging, caning or amputation. Many countries that abolished the death penalty for minors commuted the sentence to life imprisonment, which is also a form of cruel and inhuman punishment.

Previous court decisions (ie precedents) can help children enforce their rights directly in court, and judges and lawyers can play a major role in challenging those violent forms of sentencing.

Read Graham v. Florida for a decision limiting the use of sentences of life imprisonment without the possibility of release for children in conflict with the law in the United States.

Find out about strategic litigation.

Read more on the inhuman sentencing of children.

Judicial activism: Stop making children criminals

It is time for a new debate about juvenile justice that questions whether we should be making children criminals at all. With the CRC's requirement that the best interest of the child be a primary consideration (article 3) and the child’s right to maximum possible development (article 6) in mind, CRIN believes that criminal justice systems should renounce retribution of children and focus exclusively on their rehabilitation - always with the necessary attention to public safety and security. A well-functioning juvenile justice system should separate the concept of responsibility from the concept of criminalisation.

In its General Comment No. 10 on the rights of the child in juvenile justice, the Committee asserts the need to renounce retribution:

"The protection of the best interests of the child means, for instance, that the traditional objectives of criminal justice, such as repression/retribution, must give way to rehabilitation and restorative justice objectives in dealing with child offenders. This can be done in concert with attention to effective public safety."

Not criminalising children does not mean that children who commit criminal offences will avoid justice, or indeed that they will be denied their due process rights. There must be an investigation and hearings to determine what happened and who was responsible for the offence. As stated earlier, children have an explicit right in article 12(2) of the CRC to be heard in any judicial and administrative proceedings that affect them.

Judges and lawyers' involvement in moving the debate beyond proposals to move the minimum age of criminal responsibility up or down by a year or two, towards an approach focused on the rehabilitation of child offenders is crucial. Lawyers should challenge sentences of imprisonment and judges’ rulings should take a rehabilitative approach.

Read CRIN's paper on Stop Making Children Criminals. It sets out a rough outline of the possible proceedings based on a specific case that took place in England in 1993.

Promoting and protecting children's rights

Providing legal assistance

Children must be able to use and trust the legal system to protect their rights and fully participate in legal proceedings. Legal systems can be immensely confusing and difficult if not impossible to navigate for children, especially without the help of a legal professional. Legal assistance provides children with the means to understand legal proceedings, to defend their rights, and to make their voices heard. It is a necessary component of access to justice for children, and without it, it is difficult to see how children's rights can be truly respected and fulfilled. Children who come into contact with the legal system will often need the assistance of a lawyer.

Depending on the context, children may be entitled to receive legal advice or representation free of charge. The lawyer, government department, institution or organisation offering legal assistance will likely vary with a child's particular legal needs. Read our legal assistance for children guide for examples of some of the most common circumstances in which children may find themselves in need of legal assistance.

Children's rights organisations will often not have the resources to bring or participate in court cases that involve children's rights, to undertake extensive or complex advocacy campaigns that require legal expertise, or even to pay the full costs of legal assistance required for the day-to-day functioning of the organisation. To respond to these unmet needs, children and their advocates need lawyers willing to offer legal assistance to organisations that could otherwise not afford it on a pro bono basis.

Access our contact information for legal assistance resources including legal networks, international pro bono clearinghouses, international pro bono organisations and national pro bono clearinghouses.

Strategic litigation

Although the CRC has been around for more than two decades, it has in many places just begun to make its way into the courtroom. Many countries have taken steps to incorporate the Convention into their national laws and policies, and these accomplishments must not be overlooked. Nevertheless, for children to enjoy the full benefits of their rights under the CRC, they must be able to enforce them directly in court.

Lawyers should be involved in bringing violations of children's rights into the courtroom and judges should consider all human rights principles when dealing with such cases to make sure the highest human rights and justice standards are enforced inside the court. It is very important that judges use the CRC in their decision-making process when cases of violation of children’s rights are brought before the court.

Visit CRIN's CRC in court database for access to judgments from high-level national and international courts around the world.

Strategic litigation is a powerful means to establish and enforce children's rights in national and international law. It involves selecting and bringing a case to the courtroom with the goal of creating broader changes in society. It’s strategic because it means choosing the right case to take to court that will result in this change. When lawyers bring strategic litigation, they hope to use the law to leave a lasting mark beyond just winning the matter at hand.

When it is successfully used, strategic litigation can bring ground-breaking results. It can spring a government into action to provide basic care for its citizens, guarantee the equal rights of minorities, or halt an environmentally damaging activity. There are no set limits as to what strategic litigation can accomplish.

For example, in a ground breaking ruling in 2012, the Criminal Appeals Chamber of Argentina has ruled that life imprisonment sentences for persons under the age of 18 are unconstitutional. Argentinian law previously allowed for sentences of life imprisonment to be handed down to children from the age of 16, and guaranteed that they would be detained for a minimum of 20 years. Citing the CRC, the judgment recognised that life imprisonment of children was incompatible with the requirement to use detention for children as a measure of last resort and for the shortest possible period of time, as well as that, such punishment is not compatible with the need to ensure juvenile sentences aim at the reintegration of the child. The decision has served to eliminate life imprisonment of children from the laws of South America.

Seeing their rights enforced in the justice system is truly empowering for children, and strategic litigation can be an exciting and rewarding journey. However, it can also be a long, involved and even painful process, and it may prove difficult for children to be taken seriously in court. Both judges and lawyers should thoroughly consider the likely impact of involving children in the judicial process and, perhaps more importantly, the ways in which it might affect those children's lives.

In general, litigation can be a costly and time-consuming process. In considering whether to bring strategic litigation, resources are critical. Litigation can go on for many years, even decades, and resources must be available to support the costs of a legal team and fully fund all activities necessary to continue with the case.

The role of judges is very important. In some jurisdictions, courts may be able to order that the person, government, or organisation being sued not only stop from causing further harm, but actively work to remedy the damage they have caused and prevent such things from happening in the future. These bodies may be required to advise and put into place new systems and mechanisms to protect rights, provide care, or prevent abuses.

Examples of strategic litigation:
  1. India: M.C. Mehta v. State of Tamil Nadu and Others. In this case Indian activist plaintiff M.C. Mehta sued the state of Tamil Nadu to improve the working conditions for children and to provide children rescued from hazardous labour with an education.
    Background: An activist lawyer filed a petition with the court claiming that the fundamental rights of children were being grossly violated in contravention of Article 24 of the Constitution of India, which provides that “[n]o child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.” The Court noted that child labour is a “big problem” in India, and examined the history of child labour laws in India, including a decision by the court in 1991 in which it gave certain directions as to how the quality of life of children employed in factories in Sivakasi could be improved.
  2. Paraguay: Niños en conflicto con la ley: Instituto de Reeducación del Menor vs. Paraguay. In a case surrounding an overpopulated juvenile detention center in Paraguay, the Inter-American Court of Human Rights established minimum standards of care for young people in conflict with the law held in state custody.

If the claim involves international human rights law or international law in general, it may be important to look at how international law interacts with the jurisdiction in which the case brought. See the our section on guides to the UN and international human rights mechanisms.

The UN complaints mechanism for children

The UN adopted in December 2011 a new Optional Protocol to the CRC establishing a complaints mechanism for children. The complaints mechanism allows individuals, groups or their representatives, who claim that their rights have been violated by a State that is a party to a Convention, to bring a complaint before the relevant UN committee, provided that the State has recognised the competence of the committee to receive such complaints, and that all domestic remedies have been exhausted. The Optional Protocol will enter into force after 10 States have ratified it.

Thailand and Gabon were the first two countries to ratify the new treaty in September 2012. Germany will be third once its Upper House confirms ratification and the president signs the Act. Another 32 countries have signed but actual ratification could be some way away.

What should NGOs do?

Like with all children's rights matters, different people and organisations should be involved and should work together. While legal professionals know and understand national laws and rules and procedures for bringing violations of children’s rights into the courtroom, NGOs have the knowledge that judges and lawyers need in terms of international standards of children's rights. Local NGOs are also often an excellent source of information on what is really happening to children, and should provide their expert evidence where possible to help promote and enforce child rights.

NGOs should also, in partnership with judges and lawyers, work closely with the authorities to develop better laws and policies that respect all children's rights and provide children with a child-friendly justice system.

Creating a network of child rights lawyers is very important. Many NGOs have good contacts with lawyers who would be ready to bring cases to court and/or provide legal representation to a child. These contacts can help respond very quickly to children in need of legal representation.