Access to justice: Choose a path

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”.[1]

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 [2] - 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.[3]

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”.[4] 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”.[5] The Committee has clarified further that “even the youngest children are entitled to express their views”.[6] Indeed a child’s testimony “shall not be presumed invalid or untrustworthy by reason of his or her age alone”.[7]

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.