COUNCIL OF EUROPE: Developing guidelines on child friendly justice

Summary: In October 2007, the European Ministers of Justice, in Resolution No. 2, agreed on the need to develop European Guidelines on Child Friendly Justice. The Guidelines will serve as a practical tool for Member States in adapting their judicial system to the specific needs of children. The project is being carried out by the Council of Europe Directorate of standard-setting in cooperation with the Programme Building a Europe for and with Children.

The Council of Europe this morning staged a seminar in Stockholm, Sweden, to discuss the development of European Guidelines on Child Friendly Justice. The Guidelines, proposed by the European Ministers of Justice in October 2007, will serve as a practical tool for Member States in adapting their judicial system to the specific needs of children.

In an opening address, Thomas Hammarberg, Commissioner for Human Rights at the Council of Europe, set out the task ahead:

”Listening seriously to the view of children in judicial proceedings is one area in which there has not been much progress since the Convention on the Rights of the Child was adopted. My message today is this: we are behind, we need to catch up in this field if we are to develop the vision set out in the Convention on the Rights of the Child.”

The seminar, which was held as part of the Council of Europe’s child rights strategy meeting, aimed to identify principles of child friendly justice, receive input from key actors and gather elements for developing the guidelines.

The challenge, said the Commissioner, is to combine two dimensions in one system: on the one hand, respect for children’s vulnerability and need for protection; and on the other respect children’s right to freedom of expression and the need to take views of children seriously as set out in article 12 of the UN Convention on the Rights of the Child and give them due weight in accordance with the age and maturity of the child. This applies not only to criminal judicial proceedings, but also administrative and civil proceedings.

Commenting on criminal procedures, the Commissioner said we must go back to articles 37 and 40, which outline the basic points in fair procedures when it comes to children: “These spell out requirements on punishment, age of criminal responsibility - although not sufficiently clearly in my opinion - and state that detention should be avoided, or if it is absolutely necessary that it should be for the shortest possible period of time and conditions must meet certain requirements. We have a long way to go to implement that ambition.”

Hammarberg explained that his job is to travel to different countries to compare reality with rhetoric, stressing the need for a discussion about a standard minimum age of criminal responsibility in Europe. He spoke of some of the practices he had seen in several countries where children are mixed in detention with adults, describing this situation as “a school in criminality”. He said the low age of criminal responsibility in a number of Western countries - often set at 10 or 12 - is seen as a model for eastern countries, Georgia for example recently lowered the age of criminal responsibility from 14 to 12 - a bad move he said, especially given the conditions of imprisonment there.

Setting out the inadequacies of the environment of many judicial proceedings, the Commissioner said that in many cases children do not understand what is going on: the process is intimidating, little explanation is given to the child, judges are not always well trained in dealing with children – they are often bad listeners and children feel that they are steam-rolled through the system.

In conclusion, he said we must make judicial proceedings and settings much more child friendly than they are today, emphasising the importance of ensuring that children are respected in the justice system.

Expert reports

Following the Commissioner’s address, a number of experts took the floor, raising key debates to consider in developing the guidelines (read their reports here). Key questions to think about included: should the Guidelines set a minimum age of criminal responsibility? In what circumstances should a child have access to a legal representative? How do we cater for the needs of vulnerable categories of children, for example, children with disabilities and in hospitals and the different needs of child victims, witnesses and offenders? How can privacy and confidentiality be best protected? How children can be informed of their rights in the justice system, should there be a minimum age for participation in civil and administrative proceedings? What weight should be given to their evidence and how does this vary depending on the type of judicial proceeding? How can we tackle the risk of secondary victimisation and adapt judicial proceedings to avoid this?

Participants agreed that while much progress on child friendly justice has been made, practice lags behind law, and there is a real need to research what happens in practice as well as what laws say on paper.

A best practice example from Iceland

Ms Olof Asta Farestveit, Director of the Children’s House, show-cased a best practice example from Iceland – a model adapted from Texas – which aims to provide support for child victims of sexual abuse and at the same time effectively investigate the case. She explained that, in addition to providing child and family counselling and a comfortable environment for the child, the House provides an umbrella of cooperation for all the different professionals involved in case: the court judge, police, legal advocate, etc, which means the child does not have to keep repeating their story which helps prevent re-traumatisation.

Elements of a child friendly justice system

While discussion of these issues will continue over the next two days in the Council of Europe’s high level plenary meeting, participants made some preliminary conclusions about some of the elements that a child friendly justice system agreeing that such a system must ensure:

• respect for the fundamental rights of the child;
• that the principle of the best interests of the child is upheld, especially in the light of the fact that this principle is often misused.
• recognition of the need for procedural fairness and the fact that the defendant may also be a child – we must not lose sight of this in protecting rights of victims and witnesses.
• equality and non-discrimination.
• that children’s rights are upheld as set out in the UN Convention on the Rights of the Child, the European Convention as well as case law.
• the speedy resolution of issues and avoidance of delays.
• appropriate research and evidence based decision making.
• the establishment of appropriate structures, such as court facilities which give children the possibility of giving evidence in other ways, for example via CCTV,
• that judges are trained to improve the effectiveness of the justice system and to avoid secondary victimisation.
• coordination of statutory agencies to take a multi-disciplinary approach to justice issues.
• the development of alternatives to detention, such as mediation to avoid the criminalisation of children.
• the needs of vulnerable categories of children are catered to, for example children with disabilities, asylum-seeking children and children in hospitals.

Read some of the reports presented:

• Achievements in taking children’s rights further in civil justice
• Crossing boundaries in the administration of children’s justice
• Victims or perpetrators, the necessity of adapting to children’s needs

Further information

Interview: Josiane Bigot, children's judge

Council of Europe child rights strategy meeting underway