Access to justice: Get shown through the maze

Submitted by CRIN on

 

This editorial is the second in a four part series for the 2014 UN Human Rights Council’s annual day on the rights of the child. In this editorial, we address why States should ensure children can access legal representation by helping them overcome financial barriers, making sure advice is tailored to children’s needs and making sure that the assistance is focused on the child rather than anyone else.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.

 

Get shown through the maze

Legal systems are a maze to most people. Layers of complexity have been built into the system with all the different types of courts (not to mention other legal settings), documents that need to be filed, rules of evidence, legal jargon, and much more.

Getting the right assistance, advice and representation from a trained professional can show people the way through the access to justice maze.  

Children often lack experience of the law, don’t know their rights, and have little money. This makes them more vulnerable to getting lost in the legal system. But that’s not all - in most cases children’s low status means they are barred from accessing legal systems.

The importance of legal assistance has been reiterated by many experts. For instance, “legal assistance provides children with the means to understand legal proceedings, to defend their rights and to make their voices heard,” said the Special Rapporteur on the independence of lawyers and judges in her 2013 annual report.[1]

Legal aid

“Legal aid is an essential component of a fair and efficient justice system founded on the rule of law. It is a right in itself and an essential precondition for the exercise and enjoyment of a number of human rights, including the right to a fair trial and the right to an effective remedy.”[2]
 

One of the biggest blocks to obtaining legal assistance for most people is cost. Children’s low status and lack of income means that this is an even higher barrier to them.

State governed and funded legal aid services are one of the best ways to ensure people who otherwise couldn’t obtain legal assistance are able to access justice. It is imperative that a State’s free (or grossly subsidised legal aid services) are available to children, and that procedures for obtaining legal aid are simple, accessible and well-publicised.

To be effective, legal aid needs to include “unhindered access to legal aid providers, confidentiality of communications, access to information and to case files, and adequate time and facilities to prepare legal cases, as well as the provision of legal advice and education, and mechanisms for alternative dispute resolution."[3]

 
States need to ensure that legal assistance is afforded to the child, as well as to their advocate where applicable, in any proceeding concerning the child. This principle is well established in criminal law [4]   (but that is not to say that provision is by any means perfect). The Committee on the Rights of the Child has explicitly recognised that this legal assistance for children should be free of charge.[5]
 
However, “the definition of legal aid should be as broad as possible” to ensure access to justice across all legal settings and processes. [6] Limiting legal aid to criminal cases prevents most children from challenging rights abuses in civil suits and from using public interest litigation as a way to fight systemic children’s rights violations. It also feeds into the idea that children’s access to justice is all about juvenile justice and that a child’s justice rights only deserve attention when the child is alleged to have done something ‘wrong’.
 

Legal aid or sufficiently subsided legal services for children should be extended to all proceedings and settings, including criminal, civil, administrative, family, customary law and informal legal proceedings. Granting children access to legal aid across all legal settings empowers them to enforce and defend their rights and would help secure their status as human beings with human rights.

 
 
The Basic Principles on the Role of Lawyers establish that all persons should have effective and equal access to lawyers, and call on governments to “ensure the provision of sufficient funding and other resources for legal services to the poor and, as necessary, to other disadvantaged persons”.[7] Children will usually be at such a disadvantage in engaging with the legal system, whether as a result of inexperience with the legal system or lack of resources to secure advice and representation. The UN Secretary-General further emphasised the importance of the right to legal aid as a basic procedural safeguard in the Guidance Note on the UN Approach to Justice for Children, calling on States to support community-based legal and paralegal services that provide information and representation to children.[8]

Are all lawyers the same?

It goes without saying that someone providing legal advice needs to have sufficient qualifications and training. After all, the complexity of the law and legal systems is what creates the need for legal assistance in the first place.

Along with other personal characteristics (including gender, race, sexuality etc), a person’s age helps shape how they are treated by others and how they experience the world. Children are unique because of their age, and are vulnerable because of their lack of status. Legal professionals representing children need to be well-versed in issues related to children’s rights, child development and child-friendly communication, and then tailor the legal assistance they give to the rights and needs of children.

Child’s best interest

Article 3 of the Convention on the Rights of the Child provides that all actions concerning the child shall take full account of his or her best interests. [9] This is one of the guiding principles of the Convention, meaning the rights enshrined in the Convention need to be read in light of it as it is fundamental to the fulfillment of the other rights. [10]
 
Anyone acting on behalf of a child, including a legal professional, must act, make decisions and give advice in accordance with that child’s best interests - no one else’s. With this in mind, States need to guarantee that legal professionals representing children (whether via legal aid services or private practice) always act in the child’s best interests. The views of parents and other adults involved in a child’s life are of course important and should be considered. But it is the child’s best interest that must be a “primary consideration”, which the Committee on the Rights of the Child has says this “means that the child’s best interests may not be considered on the same level as all other considerations”. [11]
 

Related to this concept of best interests is the fact that it is the child’s right to access justice, no one else’s. Access to justice for children’s rights violations must be about obtaining justice for children. Part of this means that legal representation must be focused on the child and their best interests. This will be covered in tomorrow’s editorial on the access to justice for children maze - “Choose a path” - that will discuss children’s ability to start legal proceedings and their right to be heard.

 
 
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.

 

 

  • See our HRC25 session page for details about the session, including the annual day on the rights of the child.

  • 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.

  • 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.

  • The justice theme page of our website also has some further information.

 

[1] Paragraph 84, A/HRC/23/43. Can be found at : http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/23/43 

[2] ibid, paragraph 3

[3] ibid, paragraph 41

[4] See International Covenant on Civil and Political Rights, Article 14; UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, Principles 2, 3 and 10, available at: http://www.un.org/Docs/journal/asp/ws.asp?m=E/CN.15/2012/L.14/Rev.1. 

[5] UN Committee on the Rights of the Child, General Comment No. 10 on children's rights in juvenile justice, para. 49, available at http://www2.ohchr.org/english/bodies/crc/docs/GC10_en.doc. 

[6] SR on independence of judges and lawyers 2013 annual report (A/HRC/23/43), paragraph 27. Can be found at : http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/23/43 

[7] UN Basic Principles on the Role of Lawyers, Principles 2 and 3, available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/RoleOfLawyers.aspx.

[8] see footnote 53 in CRIN submission

[9] http://www.crin.org/en/docs/resources/treaties/uncrc.asp 

[10] http://www.crin.org/en/home/rights/themes/general-principles 

[11] Committee on the Rights of teh Child general comment no 14 on the right of the child to have his or her best interests taken as a primary consideration, paragraph 37 (CRC/C/GC/14). Can be found at: http://www.crin.org/en/library/publications/crc-general-comment-best-int...

 
 
 
 

 

Author: 
CRIN
Tags: 
Legal professional resources

Please note that these reports are hosted by CRIN as a resource for Child Rights campaigners, researchers and other interested parties. Unless otherwise stated, they are not the work of CRIN and their inclusion in our database does not necessarily signify endorsement or agreement with their content by CRIN.