Strategic Litigation CRINMAIL 6:
Special: Child-Friendly Justice and
Children's Rights
In this issue:
CRIN has recently published a new toolkit on Child-Friendly Justice and Children's Rights, which can be viewed and downloaded in full here. We have also launched a dedicated page on Child-Friendly Justice, where we hope to post updates, additional information, and relevant events. Please email [email protected] to share any resources you might have on the subject.
To view this CRINMAIL online, click here.
New CRIN Toolkit:
Child-Friendly Justice and Children's Rights
Introduction / Examples of Child-Friendly Justice Practices : Children as victims, Children as witnesses, Children as offenders, Children as complainants / Child-Friendly Justice and the CRC / Other International Standards / Regional Standards / Research / Other Resources
Introduction
Whether children come into 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 idea – that we must take special care with children whose lives have become entwined in the legal system – is the backbone of child-friendly justice, a movement that calls for a dramatic shift in the ways that our justice systems interact with children. Child-friendly justice embraces the idea that courts can be a powerful tool to positively shape children's lives and at the same time recognises the reality that contact with the legal system is all too often more a source of additional trauma than a remedy for children.
Building on international children's rights obligations, child-friendly justice introduces principles that empower children to enforce their rights and encourages government, court, and law enforcement officials to develop policies that address children's precarious situation in the justice system.
Child-friendly justice asks us to appreciate and minimise 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. 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.
This report aims to provide information about the obligation to follow child-friendly justice principles; international, regional, and national standards for doing so; studies, research surveys, and position papers on the subject; and other relevant resources. We hope to add to it on a regular basis, and would very much appreciate your help in drawing our attention to additional information on the subject - please email us at [email protected] with any comments or suggestions.
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Child-Friendly Justice: A Term of Art
The notion that children deserve special attention in the legal system is not a new one, and has taken on various forms and a number of different names throughout its development. You may run across other terms that reference the ideas and principles discussed in this report, from “child-friendly justice” and “child-sensitive justice” to “justice for children” and “children in contact with the law.” Recognising that these terms all cover similar ground, we have chosen for purposes of simplicity to refer to the core of the movement described solely as “child-friendly justice.”
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Examples of Child-Friendly Justice Practices
Child-friendly justice can sound abstract and theoretical, so it can be helpful to review sound laws, policies and practices that flow from accepted principles of child-friendly justice. However, it is first important to note that there may not always be one correct solution to a problem that children face in the legal system. Rather, the aim of child-friendly justice is to provide a range of strategies that can be used to adapt a legal proceeding to the particular circumstances of the child or children involved. Please bear in mind, then, that the examples below present just some of these solutions in just some of the contexts that children engage with the legal system.
Children as victims:
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Social workers, police officers, teachers, doctors, nurses, hospital receptionists and anyone else who might encounter child victims should receive appropriate training and be able to quickly refer them to designated points of contact in the legal system.
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Steps should immediately be taken to protect child victims from further harm and to link them with services they may need to reach a full physical and psychological recovery.
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Free 24-hour helplines should be put in place to offer child victims a chance to discuss their options before bringing matters to the attention of authorities.
Children as witnesses:
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Children should be interviewed by trained professionals in the presence of trusted adults; the number of interviews should be kept to an absolute minimum; and, where multiple interviews are necessary, the same interviewer should conduct each session.
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When a child agrees to testify in court, measures should be taken to keep the child at ease. Children should not be forced to have contact with alleged perpetrators and, where appropriate, audio-visual or closed-circuit television technology should be made available to facilitate prerecorded testimony or live communication from a remote location.
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Children should be asked straightforward questions in language that they understand; techniques designed to test or confuse witnesses, as are frequently employed during cross-examination in adversarial legal systems, should be avoided.
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It should never be presumed that children's testimony or evidence is untrustworthy or inaccurate simply because it is not submitted by an adult.
Children as offenders:
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Any child apprehended by the police and suspected of wrongdoing should be given an immediate opportunity to contact a parent, guardian or trusted person and provided with access to a lawyer free of charge.
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Police officers should explain to children why they have been apprehended in a way that they can understand, and should not question children about their potentially offending behaviour until a parent, guardian, trusted person or lawyer has arrived.
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Children should only be detained in exceptional circumstances and, where this is necessary, should never be detained alongside adults.
Children as complainants:
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Children should have access to free legal advice to discuss their rights and the options available for pursuing violations of these rights.
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Children should be able to initiate legal proceedings directly, through a parent or guardian, and through a chosen or appointed legal representative. Young adults should also be able to initiate legal proceedings to address childhood violations of their rights.
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Court fees, parental permission requirements, legal representation mandates, and any other constraints that might prevent children from bringing legal proceedings should be removed.
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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 a General Comment on children's right to be heard, which provides ample guidance on the implementation of child-friendly justice principles before, during and after legal proceedings. Relevant provisions from both instruments and a link to the General Comment are listed below, or the full report with text exceprts is available online here.
Convention on the Rights of the Child:
Optional Protocol on the sale of children, child prostitution and child pornography:
Committee on the Rights of the Child General Comment No. 12 on the right of the child to be heard
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Other International Standards
A number of other international standards, guidelines, rules and model laws relate to child-friendly justice and, while non-binding, provide a solid basis for improving the ways that children interact with various aspects of the legal system. Nevertheless, these instruments are by no means comprehensive, and relate primarily to children's direct involvement in the criminal and juvenile justice systems. They include:
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Regional Standards
The Council of Europe approved Guidelines on Child-Friendly Justice in November 2010. The Guidelines are the first regional standards of their kind and, according to the Council, aim to “give European governments guidance to enhance children's access to and treatment in justice, in any sphere – civil, administrative or criminal.” The Guidelines “are not only a declaration of principles, but aspire to be a practical guide for the implementation of internationally agreed and binding standards in both in-court and out-of-court proceedings.” While they have been developed with a regional context in mind, the Council's Guidelines serve as a fine model to be elaborated and adapted in other parts of the world. Resources related to their development appear below:
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Research
Many legal and psychological research studies and texts have been published on matters related to child-friendly justice, especially on the situation of child victims. While there is undoubtedly a need for further research, particularly in the juvenile justice and civil court contexts, an interest in comparing child-friendly justice practices across jurisdictions has recently emerged and promises to spread positive developments in the field around the globe. A selection of relevant publications appears below:
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Child Witnesses in the New Zealand Criminal Courts - A review of practice and implications for policy, including independent research in New Zealand and detailed information on relevant laws and practices in Australia, France, Israel, South Africa, and the United Kingdom (England and Wales).
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Testimony Without Fear (?), Non-Revictimizing Cultures and Practices: A Map of Practices for Taking Special Testimony from Children and Adolescents (Brazil), including detailed information on relevant laws and practices in Argentina, Australia, Brazil, Canada, Chile, Colombia, Costa Rica, Cuba, Ecuador, France, Germany, Iceland, India, Israel, Jordan, Lithuania, Malaysia, New Zealand, Norway, Paraguay, Peru, Poland, South Africa, Spain, Sweden, the United States, and the United Kingdom
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Other Resources
Countless other events, articles and resource pages on child-friendly justice exist. Please alert CRIN at [email protected] if you are aware of any forthcoming events or publications, or would like for us to include your work in the lists above or below.
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