Day of General Discussion: Working Group 1 discussion on the child's right to be heard in judicial and administrative proceedings

Jaap Doek chaired the discussions of Working Group number 1, which met in chamber B at 11:30am, in order to discuss the child's right to be heard in administrative and judicial proceedings. 

Kamel Filali, a member of the Committee on the Rights of the Child, then took the floor to express his pleasure at seeing that so many children would be able to make such a positive contribution to today's discussion. He emphasised that Article 12 raised many delicate issues, as well as long standing and pressing questions: Can children be participants in their own protection? Are they not vulnerable to manipulation from adults? etc. Most of these questions have so far prevented any real progress, as the prevailing culture has been focusing on the risks of embracing child participation.

However, the Committee has set a process in motion, along with UN specialised agencies and NGOs, and today there is a general recognition that children are able to make decisions for themselves and should be given the opportunity to express themselves freely.

Susan Bissell, UNICEF Innocenti Research Centre, then gave a statement and advised the Committee members on the right of the child to be heard in judicial and administrative proceedings.

People say that children have the same rights as adults. However, there are rights that children do not have, for example, the right to get married, the right to vote (depending on countries), the right to go to court to complain about the violation of their rights. The CRC says that children have the right to be heard in legal and administrative proceedings, but it doesn't say that children have the right to go to a court, to the Ombudsman for children or some other authority and be heard when their rights are being violated.

Most countries recognise the child's right to go to court if they think that their rights are being violated, but only when a child has reached an certain age. Younger children can complain to child welfare or other agencies, which, if the child is right, should then take the matter to court for the child.

When a person is an adult, the right to go to court when his/her rights are being violated is one of the most important rights they have, because it helps protect all the other human rights. The Committee might want to say whether it thinks that children also have this right, even though the CRC does not say so in so many words.

Hatem Kotrane, Committee member: Article 12 raises too many questions, and these questions can facilitate our thinking. In this debate, we need to distinguish between two situations: children as directly involved in judicial proceedings (as victims or as offenders), and children as indirectly involved in judicial proceedings (as witnesses, in divorce cases etc).

DISCUSSION

Nupur, girl from Bangladesh: children’s voices and concerns should be taken into account in judicial proceedings. States parties have their own laws but they are not implementing the UNCRC. No children should be used by political parties or rebel groups to carry arms and as suicide bombers. Also, after discussing these issues with children from other countries and with the Committee what will be the result and how will we know how you will take our recommendations into account? Can we know which recommendations cannot be implemented?

Jaap Doek: The follow up of the DGD, is that the Committee looks at all the recommendations of all the participants. Recommendations approved by the Committee are then sent to all governments. They are then posted on the website of the OHCHR. Jaap Doek offered to also send the recommendations to all children and young people directly, so that they can call the minister of youth in their country, to tell them that they should have a look at it and to talk to them about what to do about the document. He told the children that they should say to their government: "I know the document because I have a copy of it!".

Brenda, girl from the US: A country that has not ratified the CRC should also look at the principles of the CRC to respect children’s rights. My mother was deported from the US back to Mexico, and the government should ask a child before making such an important decision, because it wasn't in my best interest.

Jaap Doek: Indeed, children’s views should be taken into account, and it means that the best interest of the child have to be taken into account. And that is valid for all countries, even those that have not ratified the Convention. You could tell your government: 192 states have ratified the Convention, this means that principles of the CRC have become international customary law, which actually applies to all states in the world, and so the US should endeavour to respect the rights of children as expressed in the CRC.

Aissatou, girl from Senegal: How can you help children living in countries at war, countries that do not have governments, and countries that have not ratified the CRC?

Susan Bissell: In terms of child participation in times of war, UNICEF has been attempting to create safe spaces for children to be able to express themselves (see Iraq).

Moushira Khattab, Committee member: The majority of children affected by armed conflict do not get any help. In Lebanon and other countries, international humanitarian law is grossly violated: there is no safe passages, no immunisation, no education. This is an issue of major concern, as chilren’s rights seem to be overlooked as soon as a war starts.

Kamel Filali, Committee member: A very serious situation. Before a war starts, states parties are obliged to respect international law, they cannot target civilians or children according to these laws. If they know that there is a school, states or armed groups must refrain from attacking the school, in order to avoid tragedies like recent ones in Lebanon. After the war, when there are victims, we must ensure that they have access to aid: i.e. not block passages for food and humanitarian aid. We must avoid wars, but when they are imposed, we must ensure that principles of international humanitarian law are respected by all warring parties.

Sehreem, girl from the UK: How is it decided that a child is mature enough to be heard in judicial proceedings? What do we do when parents can’t send their children to school.

Jaap Doek: I would not trust judges when it comes to their willingness to listen to children. Ideally there should not be a minimum legal age and everyone involved would be helping children making the right decision. But if you really want to respect the CRC, you should consider a minimum age, to force governments to start implementing this right.

Participant from Save the Children Sweden in Ethiopia: on the issue of child victims of sexual abuse giving testimonies to the police and in courts, most of the time, the parents don’t want to see their children victimised again, so they don’t allow their children to go to court. Also, children participate in international events (ex: day of the African child), but most of the time, countries will not take their input seriously. Children and elections processes: in recent Ethiopian elections, children played a role in influencing their parents and their communities.

Bharti Mepani, Save the Children UK: It is frustrating that children do not have access to specific structures to help them make their voices heard. The Committee must stress to governments their role in protecting children. They need to invest in structures at local, national and international level, invest in capacity building, in order to enable children to express themselves. We need to create safe environment to allow most repressed voices to be heard. Twenty years on, the CRC is still not properly implemented, and we need to drive the CRC forward in order to make it into a reality in the next 10 years. Children might be victims and active citizens at the same time. They might need help and feel vulnerable, but it doesn’t mean that they are not also able to make a powerful contribution to society.

Paddy Kelly, Children’s Law Centre: There should be audit examination in each country with particular reference to article 12. It should include a child impact assessment and should involve children; legislative amendments should follow. There should be compulsory training for lawyers, judges etc on child participation. There needs to be a range of advocacy processes put in place for children in judicial and administrative proceedings. When there is the need for a legislative amendment, we need to have support from national institutions and NGOs. They need to take on these cases.

Rodolpho Benitez, La Familia Latina Unida: (Following on from Brenda’s story). Children are not small adults, they are children with specific needs, including the need to be with their family. What can the Committee do for countries that have not ratified the Convention?

Kirsten Sandberg: In Norway, children above the age of 7 have a right to be heard in judicial and administrative proceedings. It is still a trial period, and a legal problem has arisen, because judges still have to decide whether or not it is in the child’s best interest to be heard. It is a very paternalistic view. Also, children are being interviewed in immigration cases, but they are heard in their parents’ cases, and they can be forced or pressured into giving information about their parents that they don’t want to give. Children should talk about themselves only. 

Emmanuel Sherwin, IFCO: In the past years, there has been a prevalence in the media on international adoption. However, it denies children the right to decide about important matters affecting their lives. Yet, governments carry on allowing companies to profit from international adoption as well as faith-based organisations in sub-Saharan Africa.

Jaap Doek: The CRC does not prohibit international adoption. But the Committee is of the view that it should be a last resort. All options available in the child’s own country must be explored before considering international adoption, but in some cases, it is a good last resort. The best interests of the child are at stake. See the case of the Romanian children adopted by an Italian couple, who were taken to court, because the children refused to go and lived in Romania. The court supported the case of the children.

Susan Bissell: An increasing number of countries have declared moratoriums on international adoption, which is a big improvement.

Nevena Vuckovic-Sahovic, Committee member: In addition, an increasing number of children are sold for adoption, or to be exploited.

Participant from Belgium: When governments actually set a minimum legal age for the child’s right to be heard in judicial and administrative proceedings (Belgium, 12 years old), there is a risk that they will do nothing else, and dispense with supporting children’s participation, the gathering of their opinion. This constitutes another form of violence against them, if their opinion is heard but not taken into account.

Participant from Bangladesh: There is no coordination between the different ministries that deal with child welfare issues in Bangladesh The government is eager to promote children’s rights, child rights NGOs are numerous and active, but there is a lack of coordination to make this good will effective. This includes difficulties in attributing necessary budgets to children’s issues.

Froydis Heyerdahl, Norwegian Ombudsman for Children: There is a link between the best interest of the child and the right to participation. But sometimes, it is actually not in the best interest of the child to be heard. It is important to also think about that. In Norway, there is an age limit.

Nupur, girl from Bangladesh: There is a CRC principle that all rights should be protected, but what about indigenous children? Concerned about children being trafficked from Bangladesh to India. Many girls are victims of sexual exploitation in their communities before becoming commercial sexual workers, what can the Committee do for them? The Committee need to put even more pressure on governments.

Nils, boy from Norway: If a country violates principles of the CRC, all the Committee does is tell the government. We understand that governments can’t be punished, but maybe they should be named and shamed, for example, we could put up a list of the worst offenders to force them to change. The group of children that have prepared to participate in this day of discussion have agreed that there should be a child representative in the Committee. We are aware that it would take a lot of time, so maybe we could consider something else, like facilitating child participation in parallel proceedings like pre-sessional meetings and children’s ombudsmen institutions, because this is something that the Committee can do on its own without consulting with governments.

Jaap Doek: In principle, the Committee agrees that children should be more involved in the work of the Committee. But practically, it is more difficult. For example, bringing children to pre-sessional meetings is done now by UNICEF, and the Committee meets with children separately. The Committee would love to have the budget to pay for the children’s trip to Geneva but it doesn’t. So it cannot help children to come. It might be easier for members of the Committee to go to countries and talk to the children in their own countries. More cost-effective. Trips could be done after they meet the government to discuss the report. But for this again, Committee members depend on the generosity of UNICEF and other NGOs. Plus the Committee members are not paid. So there are lots of practical problems.

The Committee must indeed put more pressure on governments, but it is not enough, we need to work together with civil society and children to make governments accountable and force them to follow up on the Committee’s recommendations 

Aissatou, girl representative from Senegal: I would like to say that we are tired of being told that we are the future, because we are also the present and we would like to live our childhood and adolescence fully.

Judith Ennew: It is not just children who do not have opportunities to make their voices heard, many groups of people have their voices repressed and are uninformed about their rights. We should consider children’s rights as human rights, not as the rights of a specific group of people.

Brent Parfitt, Committee member: the right to be heard and considered is not the right to decide. What is the children’s opinion / experience on this and their best interest? Who should decide for them?

Claire Bernard, Commission des droits de la personne et des droits de la jeunesse au Quebec, Canada: About the legal representation of children, it might be better for recommendations to not tell governments to fix a minimum age for the right to be heard in judicial and administrative proceedings, as it would exclude a whole range of children. In Quebec, all children can be heard, but their right to consent varies according to the type of procedures (adoption, etc). So maybe it is better to have varying modalities of expression rather than fix different ages.

Carmen Madinan, Executive Director of ECPAT International, called on the Committee to work for such reform. Children pictured in child pornography/child abuse images have no voice. Of the millions of children whose abuse in documented only a few hundred have been identified and can speak against such violations. Notheless most courts around the world do not allow for victim input statements to be made on the behalf of children victims of child pornography, which results in giving the accused perpetrator undue voice in legal proceedings. 

Participant from India: Children should be given freedom of association so that they can enjoy effective participation.

Sehreem and Brenda: there should not be an age limit on the child’s right to speak in judicial and administrative proceedings.

Nupur: when children are offenders or considered as such, children should be separated from adults in custody, judicial proceedings and prisons, and girls should be separated from boys as they are more vulnerable to abuse. Abandonned, orphan and runaway children are also particularly vulnerable and have no one who can represent them in courts when they are arrested. They should be looked after by the community. UNCRC says there should be no discrimination between boys and girls, but in Bangladesh there is a lot of discrimination. Schools still use physical punishment. So the UNCRC should be incorporated in the curriculum.

Emmanuel Sherwin: It all comes down to training: training adults and all people who work for and with children, in order to allow child participation to function well.

Jaap Doek: Agreed. Many countries are still far behind in this domain. And the most difficult professionals to train are judges, because they think they already have the necessary wisdom to do their job well.

We need a study on how many children in countries that have no age limit are invited to express themselves in court, and the same in countries that have an minimum age, and in these countries, how many children under the age limit are also invited. The Committee believes there should be an age limit as it would encourage the start of a process.