Submitted by CRIN on
This editorial is the final puzzle 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. The third - “Choose a path” - looks at the need to make access to justice child focused.
In this editorial we address some issues around children’s rights to find a solution to the access to justice maze. What remedies are available to children who have suffered rights violations, and how do they access them?
Find a solution
Every human rights violation must have a remedy. Otherwise, human rights are rendered virtually meaningless in law because victims cannot obtain redress for the abuse they have suffered. A justice system that respects human rights is one that holds perpetrators responsible, provides remedies for victims and works to prevent the wrong from happening again.
In the words of the Committee on the Rights of the Child, “[f]or rights to have meaning, effective remedies must be available to redress violations”.[1] So children can find a solution to the access to justice maze. States need to ensure their justice systems enable effective remedies for children’s rights violation.
What do we mean by remedies?
The right to a remedy for a human rights violation is established in international law. Article 8 of the Universal Declaration of Human Rights and article 2(3) of the International Covenant on Civil and Political Rights recognise the right to an effective remedy by the competent national tribunals for acts violating fundamental rights.
All children must have “access to a readily available, prompt and effective remedy in the form of criminal, civil, administrative or disciplinary proceedings”.[2] The type of remedy required for each individual rights violation will vary - it depends on the nature and gravity of the violation and the damage to the child.
Both physical and psychological rehabilitation may be necessary to help victims rebuild their lives, as stipulated in article 39 of the UN Convention on the Rights of the Child. Financial compensation may also be necessary. The Committee on the Rights of the Child has reiterated this: “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, as required by article 39.”[3]
Access to justice is a human right; it also makes other human rights a reality by empowering people to challenge violations. In addition to remedies applicable to their particular case, children should also be able to use access to justice to change laws, policies or other structures that caused the rights violation. This feeds into the important notion that children are human beings with human rights, not simply objects of pity or charity who need to rely on adults to pursue advocacy.
Legal settings
The third optional protocol to the Convention on the Rights of the Child establishing a communications procedure means that, from next month, children’s rights violations can be brought to the Committee on the Rights of the Child. While this is a terrific achievement and finally places children’s rights on a level platform on the international stage with other human rights, access to justice for children should focus on their ability to use national systems to obtain remedies.
International mechanisms, including the new complaints procedure to the Committee on the Rights of the Child, exist for when protection fails at the national level. Claimants must first exhaust domestic remedies, which means they have to have used or attempted to use all effective procedures available to them in their own country (e.g. using the national courts and appeals process, complaining to the police etc).National mechanisms also carry the benefit of being able to implement decisions directly, more quickly and without the delay involved in using the international system.
Courts are a powerful but not exclusive means of challenging children’s rights violations. For instance, traditional, customary and other informal dispute resolution mechanisms should be available to children where appropriate,[4] particularly as these systems may be less intimidating and in some instances better able to address issues of direct relevance to children.[5]
States should not only establish multiple avenues for individual children to bring violations of their rights to attention, but also provide opportunities to challenge systematic, grave or widespread children’s rights abuses. In the context of the formal legal system, this may take the form of combined cases, test cases, group litigation, class action lawsuits, judicial review proceedings or public interest litigation. Where complaints mechanisms are concerned, large scale violations can be addressed through collective complaints. To some degree, each of these helps to overcome the difficulties faced by individual child victims of rights violations in pursuing a legal remedy.
Time limits on children’s access to justice
It is common for legal actions to have limitation periods, which establish for how long legal action can be brought after a violation has occurred. Limitation periods can pose problems for children, who may be barred from accessing legal systems because of their age, or may not be aware of their rights or that they have suffered a violation. The UN General Assembly has said that limitation periods should not apply at all to serious violations of international human rights law and should not be “unduly restrictive” for other rights violations.[6] In the context of childhood, this means that the time period should not begin running until they have become full legal adults.
Obtaining a remedy is the key that allows children to solve the access to justice maze. See our webpage for the annual day on the rights of the child for other blocks children face in the access to justice maze, and recommendations for how States can open the maze, help show children through the maze and choose a path that allows them to find a solution.
Further information
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.
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See our HRC25 session page for details about the session, including the annual day on the rights of the child.
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Read the UN Office of the High Commissioner for Human Rights’ (OHCHR) report that will be the basis of discussions during the annual day.
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Read CRIN’s submission for the above report.
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Read CRIN's guide to the UN for more on the Human Rights Council and other UN mechanisms.
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See the law section of our website for more, particularly for a collaborative project mapping how access to justice for children works in every country in the world.
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The justice theme page of our website also has some further information.
[1] UN Committee on the Rights of the Child, General Comment No. 5 on general measures of implementation of the Convention on the Rights of the Child, para. 24, available at: http://www2.ohchr.org/english/bodies/crc/docs/GC5_en.doc.