This editorial is the third in a four part series published by CRIN for the 2014 UN Human Rights Council’s annual day on the rights of the child. This year the theme is access to justice. Read the first - “Open the maze” - on the importance of States recognising that children are human beings with human rights; and the second - “Get shown through the maze” - on legal representation for children.
In this editorial we address some issues around children’s rights to choose their own path through the access to justice maze. Can children file cases in their own name? Is their right to be heard respected, and are there child-friendly procedures in place so they can give evidence?
Choose a path
Children have their own human rights. Not because they are “the future” or “the adults of tomorrow”, but because they are human beings today. Access to justice is a human right; it also makes other human rights a reality. This means that it is children who need to be empowered to choose their own path and access justice when their rights have been violated.
However, this is not to say that adults should never be able to help children through the access to justice maze, especially when children are very young or particularly vulnerable. But this should never conflict with children’s rights and/or with the best interests of the child.
The child’s right to access justice
Children are barred from accessing justice themselves in most countries. This could be because children cannot bring a case in their own name; but often it is because they have to act through a representative or need the consent of their parents/guardians to pursue a case.
For children to be viewed and treated as human beings with human rights, they ought to be able to access justice themselves. As noted by the UN Committee on the Rights of the Child, “age should not be an impediment for the child to access complaints mechanisms within the justice system”.
Children should be permitted to bring cases in their own name. They should never be required to have the assistance of an adult in bringing or participating in legal proceedings, although a representative should be offered and provided should they need it (because they are very young, for example) or they desire guidance from a parent, guardian, lawyer or other suitable professional.
If a child is acting through a representative, it is critical that the representative correctly relays the child’s views, and does not pose a conflict of interest that would interfere with his or her duties to the child  - an obvious example would be a parent acting as a representative for their child where the child is alleging abuse in the home.
However, there will of course be times when it is both practical and in children’s best interests to access justice with the assistance of an adult. It is important to realise that many children are unlikely to bring legal proceedings of their own initiative - the obvious case being infants and very young children, who might not even be aware that their rights have been violated. This means that it’s important that adults be empowered to help children access justice, but it should not be a pre-requisite.
Children’s right to be heard
Article 12 of the UN Convention on the Rights of the Child stipulates that children have the right to express their opinion and to have that opinion taken into account in any matter or procedure affecting the child. Paragraph 2 of Article 12 makes it clear that this right applies to justice systems.
The Committee on the Rights of the Child has said that children “must be given the opportunity to be directly heard in any proceedings”. It has also said that a child’s views need to be “given due weight in accordance with the age and maturity of the child“, and that article 12 makes it clear that “age alone cannot determine the significance of a child’s views”. The Committee has clarified further that “even the youngest children are entitled to express their views”. Indeed a child’s testimony “shall not be presumed invalid or untrustworthy by reason of his or her age alone”.
The right to be heard is vital for anyone whose rights have been violated. Without it, they, their experiences and opinions will never make it out of the access to justice maze.
Recognising the right to be heard for children trying to access justice is even more important, because so often children’s views are overshadowed by adults who have louder voices and higher platforms to shout from.
Related to children’s right to be heard is the importance of the environment in which children are expressing themselves. Children are unique and can be vulnerable, particularly those who have suffered abuses of their rights. Intimidating and inaccessible courtroom procedures can hinder children in their attempt to access justice for rights violations.
According to the Committee on the Rights of the Child: “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.”
These child-friendly procedures should apply to all types of legal settings. In fact, administrative or more informal settings can be more suitable to children and their needs, giving them a better chance of utilising their right to be heard and finding a solution to the access to justice maze.
Tomorrow is the UN Human Rights Council’s annual day on the rights of the child. This year’s theme is on access to justice. This editorial is the third in a four part series. Read the first - “Open the maze” - on the importance of States recognising that children are human beings with human rights, and the second - “Get shown through the maze” - on why legal representatives are vital for children to access justice. Tomorrow’s editorial will be the final piece of the puzzle, and will look at what it means to find a solution for children’s rights violations in the access to justice maze.
CRIN is reporting live from Geneva for the week of the annual day (10 - 14 March) - sign up to receive our daily Children’s Rights at the UN CRINmails with updates and analysis on what is going on at the Council and follow #HRC25 on twitter.
Read the UN Office of the High Commissioner for Human Rights’ (OHCHR) report that will be the basis of discussions during the annual day.
Read CRIN’s submission for the above report.
Read CRIN's guide to the UN for more on the Human Rights Council and other UN mechanisms.
The justice theme page of our website also has some further information.
 Report from the General Day of Discussion on the right to be heard (2006): http://www.crin.org/en/library/publications/un-committee-rights-child-day-general-discussion-childs-rights-be-heard paragraph 50
 UN Committee on the Rights of the Child, General Comment No. 12 on the right of the child to be heard, para. 36, available at: http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC-C-GC-12.doc
 Committee on the Rights of the Child, general comment number 12 on the right to be heard, paragraphs 35-36 (2009): http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC-C-GC-12.pdf
 UN Committee on the Rights of the Child, General Comment No. 7 on implementing child rights in early childhood, para. 14, available at: http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/GeneralComment7Rev1.pdf
 UNODC-UNICEF Model Law on Justice in Matters involving Child Victims and Witnesses of Crime, Article 20, available at: https://www.unodc.org/documents/justice-and-prison-reform/Justice_in_matters...pdf
 Committee on the Rights of the Child, general comment number 12 on the right to be heard, paragraph 34 (2009): http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC-C-GC-12.pdf