CM(2010)147 add2final 25 November 20101
1098 Meeting, 17 November 2010
10 Legal questions
10.2 European Committee on Legal Co-operation (CDCJ) –
c. Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice
Why a new instrument?
1. For the Council of Europe, protecting children’s rights and promoting child-friendly justice is a priority. The issue of protection of children was addressed by the Action Plan of the Third Summit of Heads of State and Government in Warsaw in 2005.
2. While a number of legal instruments exist at the international, European and national levels, gaps remain both in law and in practice, and governments and professionals working with children request guidance to ensure the effective implementation of their standards. In the well-known V. and T. v. the United Kingdom case, two 10-year old boys who had kidnapped and battered to death a 2-year old, were tried as adults, under massive press coverage. The European Court of Human Rights (hereinafter “the Court”) later found that the trial had been incomprehensible and intimidating for the children who had thus been unable to participate effectively in the proceedings against them, and established a breach of Article 6 of the European Convention on Human Rights (hereinafter ECHR), which guarantees right to a fair trial. In Sahin v Germany, the same court found that the substantive violation was the failure to hear the child’s own views, and indicated that the national court had to take considerable steps to ensure direct contact with the child and that by this means only can the best interests of the child be ascertained.
3. These cases could have occurred in almost any Council of Europe member state. They illustrate the need to enhance the access to justice and improve treatment of children in judicial and non-judicial proceedings, the importance of raising the knowledge and awareness of professionals working with children in such proceedings and of providing them with adapted training in order to guarantee the best interests of the child, as well as the good administration of justice.
4. The following guidelines are the Council of Europe’s direct response to Resolution No. 2 on child-friendly justice adopted at the 28th Council of Europe Conference of the Ministers of Justice (Lanzarote, 25-26 October 2007), which requested concrete guidance for the member states in this field. The Committee of Ministers thus instructed four Council of Europe bodies to prepare guidelines on child-friendly justice (hereafter “the guidelines”) proposing solutions to assist member states in establishing judicial systems responding to the specific needs of children, with a view to enhancing children’s effective and adequate access to and treatment in justice, in any sphere – civil, administrative or criminal.
5. With that transversal perspective in mind, the Council of Europe adopted an innovative integrated approach bringing together three of its major intergovernmental committees dealing with civil and administrative law (the European Committee of Legal Co-operation – CDCJ), criminal law (the European Committee on Crime Problems – CDPC), general human rights (the Steering Committee for Human Rights – CDDH), as well as the European Commission for the Efficiency of Justice (CEPEJ). The guidelines were also drafted in close co-operation with the Programme “Building a Europe for and with children”, which made child-friendly justice one of the core pillars of the Council of Europe’s Strategy on Children’s Rights for 2009-2011.
6. The Council of Europe started this work in 2008 with the preparation of four expert reports assessing the challenges and obstacles faced by children in accessing justice at national level in all sectors of the judicial system. These reports were presented and used as a basis for discussions at high-level Council of Europe conferences held under the auspices of the Swedish (“Building a Europe for and with Children – Towards a strategy for 2009-2011”, Stockholm, 8-10 September 2008) and Spanish (“The protection of children in European justice systems”, Toledo, 12-13 March 2009) chairmanships of the Committee of Ministers. The findings of the reports and the conclusions of the conferences paved the way for the drafting of the guidelines and provided valuable material for the Group of Specialists on child-friendly justice (CJ-S-CH) which was established to prepare the guidelines in 2009-2010.
7. This Group of Specialists was composed of 17 independent specialists selected by the Council of Europe in consultation with the CDCJ, CDPC and CDDH on the basis of their personal expertise in children’s rights, while respecting a specialisation balance (between civil and administrative, criminal and human rights law), as well as a geographical and a gender balance. The Group had Mr Seamus CARROLL (Ireland) – Chair of the CDCJ – as Chair, Ms Ksenija TURKOVIĆ (Croatia) –appointed by the CDPC – as Vice-Chair, and Ms Ankie VANDEKERCKHOVE, children’s rights specialist from Belgium, as scientific expert.
8. The Group included judges, attorneys, prosecutors, academics, psychologists, police officers, social workers, as well as representatives of the governments of the member states, and was therefore characterised by its multidisciplinary composition. A wide range of observers, including representatives of leading international intergovernmental and non-governmental organisations, also contributed to its work.
9. The draft guidelines and its explanatory memorandum were examined and approved by the European Committee on Legal Co-operation (CDCJ) during its 85th plenary meeting held from 11 to 14 October 2010, before their transmission to the Committee of Ministers for adoption on 17 November 2010. Before that, the CDPC and the CDDH took note of the text and supported it at their plenary sessions (7-10 June, 15-18 June 2010 respectively).
Consultation of stakeholders
10. The consultation of various stakeholders on the draft guidelines was ensured throughout the drafting process through continuous public consultation on the successive drafts of the text from October 2009 to May 2010. A hearing with leading international NGOs and other stakeholders specialised in children’s rights was organised on 7 December 2009 in Strasbourg. The 4th draft of the guidelines was specifically submitted to the member states and focal points for comments, as well as to a number of internal and external partners, between January and May 2010. The comments were subsequently taken into consideration by the Group when finalising the text, thus ensuring a transparent and inclusive process of adoption.
Consultation of children and young people
11. In accordance with the terms of reference of this Group of Specialists, the Council of Europe also organised a direct consultation of children and young people on justice in 2010. Around 30 partners throughout Europe contributed to it, drafting, translating and disseminating a questionnaire in eleven languages and organising focus groups. Exactly 3721 replies from 25 countries were analysed by
Dr Ursula KILKELLY, an Irish children’s rights expert, and taken into account by the CJ-S-CH in the finalisation of the guidelines. Key themes included family, (mis)trust of authority, need for respect and the importance for children and young people to be listened to.2
12. This consultation has been the first Council of Europe’s attempt to directly involve children and young people when drafting a legal instrument and will be extended to further similar activities3 with a view to ensuring the meaningful participation of children and young people in the normative work of the Organisation. It was carried out with the generous financial support of the Government of Finland.
13. During the drafting process, numerous changes were made to ensure that the guidelines met the needs of the children and responded to what children recounted about the justice system. Overall, a very genuine effort was made to ensure that these views were taken into account in the detail, scope and strength of the guidelines.
14. In particular, the views of children have been used to:
· support the extent and manner in which the guidelines recognise the right of children to be heard, to receive information about their rights, to enjoy independent representation and to participate effectively in decisions made about them. The wording in all relevant sections was strengthened in these respects. For example, the guidelines now require judges to respect the right of all children to be heard in all matters affecting them and require that the means used shall be adapted to the child’s understanding and ability to communicate and take into account the circumstances of the case;
· ensure that adequate provision is made in the guidelines for children to understand and receive feedback on the weight attached to their views;
· strengthen the provision in the guidelines for the supports that children enjoy before, during and after contact with the justice system. Particular consideration was given to the role of parents and those trusted by children (e.g. section on children and the police);
· support provision for an unequivocal right to access independent and effective complaints mechanisms for all parts of the justice system, support specialisation among all professionals and require necessary training for all professionals who come into contact with children in the justice system. These were considered central to addressing the lack of trust in authority expressed by children during the consultation;
· strengthen provision for confidentiality in professionals’ dealings with children;
· promote consultation and partnership with children where appropriate on the operation of the justice system to children, and the development and review of law, policy and practice.
Structure and content
15. The guidelines are a non-binding instrument. While in this guidelines “should” is frequently used where the relevant principles are taken from a binding legal instrument, whether a Council of Europe’s instrument or other international instrument, the use of “should” must not be understood as reducing the legal effect of the binding instrument concerned.
16. The guidelines build on existing international, European and national standards. The best interests of the child are their guiding thread as they take into account the basic principles set out in the ECHR and the related case law of the Court as well as the United Nations Convention on the Rights of the Child. The guidelines promote and protect, among others, the rights of information, representation and participation of children in judicial as well as non-judicial proceedings, and give a place and voice to the child in justice at all stages of the procedures. As a concrete tool, they also present good practices and propose practical solutions to remedy legal gaps and lacunae. For instance, specific techniques for listening to the child (including in a courtroom environment) are addressed. The guidelines are not only a declaration of principles, but aspire to be a practical guide to the implementation as well as advancement of internationally agreed and binding standards.
17. In line with the terms of reference of the CJ-S-CH, the text of the guidelines is structured around various principles applicable before, during and after the proceedings.
18. The attention of those Council of Europe member states that are considering drafting legislation concerning children in judicial and non-judicial proceedings is drawn to the guidelines’ relevant principles, standards and recognised good practices.4
19. Over the last few decades, many public and private organisations, ombudspersons, policymakers and others have been seeking to ensure that children5 are aware of their rights and that these rights are enforced in their daily lives. While we recently celebrated 60 years of the ECHR and 20 years of the United Nations Convention of the Rights of the Child, reality at national, regional and international levels demonstrates too often that children's rights are still violated.
20. Children may come into contact with judicial or non-judicial proceedings in many ways, when their parents get divorced or fight custody battles over them, when they commit offences, witness crimes or are their victims, request asylum, etc. Children are bearers of rights and in this context it is necessary that procedures are made more child-friendly in order to support them in the best possible way should they need to invoke judicial or non-judicial proceedings to have their rights protected.6
21. For children, there are many legal, social, cultural and economic obstacles to their access to court, the lack of legal capacity probably being the most important one. Very often, parents or guardians legally represent them. But when the legal representative does not want to act on their behalf, or is incapable of doing so, and when competent public authorities do not instigate a procedure, children often have no way to defend their rights or act against violations. In those cases, and if a special representative has not been appointed by the competent authority, they cannot enjoy the basic right to bring a matter to court, even though the ECHR contains several fundamental principles to this effect (cf. Article 6, which includes, inter alia, the right to a fair trial). And while this convention includes human rights for “everyone”, bringing a case to the court is particularly difficult for children. Despite the fact that the Court has some case law on children's rights issues, courts, both national and international, are rarely accessible to children, and adults remain the ones who usually initiate proceedings on their behalf.7 Therefore, children’s access to justice needs to be addressed in the guidelines on child-friendly justice.8
22. Guidelines on child-friendly justice aim to deal with the status and position of children and the way they are treated in judicial and non-judicial proceedings. However, before bringing cases to court, it may be in the child’s best interests to turn to methods of alternative dispute resolution, such as mediation. These guidelines cover proceedings both in or outside court.
23. They are meant to stimulate discussion on children’s rights in practice and encourage member states to take further steps in turning them into reality and filling in existing lacunae. They are not intended to affect issues of substantive law or substantive rights of children nor are of legally binding nature. Most of the guidelines will only necessitate a change in approach in addressing the views and needs of children.
24. They also aim to serve as a practical means for member states in adapting their judicial and non-judicial systems to specific needs of children in criminal, administrative and civil justice procedures, irrespective of their status or capacity. They should also be used in very specific areas of law, such as youth protection legislation existing in several member states.
25. In this context, the guidelines seek to facilitate the implementation of the guiding principles of the UN Convention of the Rights of the Child. Equally, all rights stipulated by the ECHR and confirmed by the Court shall apply with equal force to children as they do to adults.
26. As the gap between these provisions and children’s actual rights is striking, the explanatory memorandum makes frequent references to good practices, factual and legal, found in member states and in the case law. They may serve as useful information as well as inspiration.
27. Major international organisations dealing with human rights, such as the United Nations and the Council of Europe, have already developed significant standards and guidelines referring to children's rights. They will be considered in appropriate places. The Preamble mentions those particularly relevant in this area without preventing member states from introducing or applying higher standards or more favourable measures. It also calls upon member states to speedily ratify relevant Council of Europe conventions concerning children’s rights. This is a practical measure as several of these instruments have not been ratified by a high number of states.9
I. Scope and purpose
28. The scope and the purpose of the instrument is dealt by (1)-(3). As already indicated, the guidelines apply to criminal, civil or administrative law, and aim to ensure that all rights of children in such proceedings are fully respected, while striking the right balance with the rights of other parties involved.
29. The definition of “child” is formulated in accordance with Article 1 of the UN Convention of the Rights of the Child, as well as Article 1.1 of the European Convention on the Exercise of Children's Rights (CETS No. 160). The ECHR grants rights to “everyone”, and does not exclude persons under the age of 18. There may be cases where a person under the age of 18 is not considered a child, for example in cases of emancipation, existing in several member states.
30. The definition of “parent” in (b) encompasses all persons with parental responsibilities, who may not always be the biological parents, but also other persons holding parental responsibilities, such as guardians or appointed legal representatives.
31. While child-friendly “justice” is defined in (c), the text also insists that its scope is broader than the actual justice system and court proceedings. They are aimed at all professionals dealing with children in and outside judicial proceedings. Sectors such as police, social and mental health services, are also responsible for making justice more child-friendly. The guidelines strive to ensure that children's rights are known and scrupulously respected by all these professionals.
III. Fundamental principles
32. The principle of participation, i.e. that children have the right to speak their mind and give their views in all matters that affect them is one of the guiding principles of the UN Convention of the Rights of the Child.11 While this does not mean that their opinion will always be adhered to, guidelines require that their opinions be taken into account seriously and given due respect, according to their age, maturity and the circumstances of the case, subject to national procedural law.
33. The reference made to the term “capable of forming his or her own views”12 should not be seen as a limitation, but rather a duty on the authorities to fully assess this capacity. Instead of assuming too easily that the child is unable to form an opinion, states should presume that a child has in fact this capacity. It is not up to the child to prove this. In line with children rights law, the text of A(2) underlines the essential message that children are bearers of rights.
34. States are discouraged from introducing standardised age limits.13 The UN Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime also state that “age should not be a barrier to a child’s right to participate fully in the justice process.” 14
35. In family cases, children should be included in the discussions prior to any decision which affects their present and/or future well-being. All measures to ensure that children are included in the judicial proceedings should be the responsibility of the judge who should verify that children have been effectively included in the process and are absent only when children themselves have declined to participate or are of such maturity and understanding that their involvement is not possible. Voluntary organisations and child ombudspersons should also make all efforts to ensure that children are included in family law proceedings and are not faced with a fait accompli.15
In a case dealing with an accused minor with a low level of understanding, the Court found that “effective participation in this context presupposes that the accused has a broad understanding of the nature of the trial process and of what is at stake for him or her, including the significance of any penalty which may be imposed. It means that he or she, if necessary with the assistance of, for example, an interpreter, lawyer, social worker or friend, should be able to understand the general thrust of what is said in court. The defendant should be able to follow what is said by the prosecution witnesses and, if represented, to explain to his own lawyers his version of events, point out any statements with which he disagrees and make them aware of any facts which should be put forward in his defence.”16 Moreover, it is “essential that he be tried in a specialist tribunal which is able to give full consideration to, and make proper allowance for, the handicaps under which he labours, and adapt its procedure accordingly.”17
Similarly, in Sahin v. Germany, the Court concluded in a custody case that “it would be going too far to say that domestic courts are always required to hear a child in court on the issue of access to a parent not having custody, but this issue depends on the specific circumstances of each case, having due regard to the age and maturity of the child concerned.”18
Lastly, in another custody case, Hokkannen v. Finland, the Court judged a 12 year-old girl “sufficiently mature for her views to be taken into account and that access therefore should not be accorded against her wishes”.19
B. Best interests of the child
36. The child’s best interests should be a primary consideration in all cases involving children. The assessment thereof needs to be done accurately. These guidelines promote the development of multidisciplinary methods for assessing the best interests of the child acknowledging that this is a complex exercise. This assessment becomes even more difficult when these interests need to be balanced with the interests of other involved parties, such as other children, parents, victims, etc. Such balancing should be done professionally; on a case-by-case basis.
37. The best interests of the child have always to be considered in combination with other children’s rights, e.g. the right to be heard, the right to be protected from violence, the right not to be separated from parents, etc.20 A comprehensive approach shall be the rule.
38. It is remarkable how little use is made of the “best interests” principle in cases of juvenile justice, unlike in family law matters. There is a worrying trend in many Council of Europe member states towards treatment of young offenders like adults.21 It goes without saying that all children's rights need to be respected for those children who breach the law. A strictly punitive approach is not in accordance with the leading principles for juvenile justice as formulated in Article 40 of the Convention of the Rights of the Child.22 Interventions of a more socio-educational nature are much more in line with this instrument and have proven to be more effective in practice as well.23
In several family cases, the European Court of Human Rights stated that domestic courts should assess the difficult question of the child’s best interests on the basis of a reasoned, independent and up-to-date psychological report, and the child, if possible and according to its maturity and age, should be heard by the psychological expert and the court in access, residence and custody matters.24
In the case of Bronda v. Italy, the interests of the child were deemed to override that of other parties involved: “[…] while a fair balance has to be struck between S.’s interest in remaining with her foster parents and her natural family’s interest in having her to live with them, the Court attaches special weight to the overriding interests of the child, who, now aged fourteen, has always firmly indicated that she does not wish to leave her foster home. In the present case, S.’s interest outweighs that of her grandparents.”25
A similar statement was made by the Court in the already mentioned case of Sahin v. Germany: “Article 8 requires that the domestic authorities should strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, particular importance should be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parents. In particular, a parent cannot be entitled under Article 8 to have such measures taken as would harm the child's health and development.”26
In the adoption case of Pini and Others v. Romania, the Court ruled with regard to the child’s refusal to be adopted by a foreign family: “in such matters […] the child’s interests may, depending on their nature and seriousness, override those of the parent.”27
39. Respecting dignity is a basic human rights requirement, underlying many existing legal instruments.28 Although various provisions of the Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime are relevant in this context, particular attention should be paid to its statement that “every child is a unique and valuable human being and as such his or her individual dignity, special needs, interests and privacy should be respected and protected.”29
40. The text of C(2) repeats the provision of Article 3 of the European Convention on Human Rights.
D. Protection from discrimination
41. The prohibition of discrimination is also a well-established principle in international human rights law. Article 2 of the Convention of the Rights of the Child is viewed as one of its guiding principles. The text of D(1) mentions several well-known grounds for discrimination.
42. On the specific question of “race”, the Council of Europe’s European Commission against Racism and Intolerance (ECRI) in its General Policy Recommendation No. 7 on national legislation to combat racism and discrimination indicates: “Since all human beings belong to the same species, ECRI rejects theories based on the existence of different ‘races’”. However, in this document, ECRI uses this term in order to ensure that those persons who are generally and erroneously perceived as belonging to “another race” are not excluded from the protection provided for by the legislation.
43. It is common knowledge that some categories of particularly vulnerable children may be in need of special protection in this respect. The text lists some of these categories; however, the list does not purport to be exhaustive, as other grounds of discrimination cannot be excluded.
44. Another important factor of discrimination in the area of children's rights is age and capacity. Very young children or children without full capacity to pursue their rights are also bearers of rights. For these children, alternative systems of their representation need to be developed to avoid discrimination.
E. Rule of law30
45. Without trying to define the concept of “the rule of law”31, several of its elements are pointed out in E(1) and E(2). The whole text has been influenced by the opinion of the Court that “the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention”.32 Therefore, its impact should be felt in all proceedings involving children.
46. The rule of law establishes inter alia the fundamental principle that everyone is accountable to clearly established and publicised laws and has enforceable rights. This principle applies irrespective of age so that member states are expected to respect and support fundamental rights for all, including children. The application of the rule of law with respect to children necessitates inter alia enforcement of the right to presumption of innocence and right to a fair trial, including independent legal assistance, effective access to a lawyer or other institution or entity which according to national law is responsible for defending children’s rights.
47. For children, the principle of “nullum crimen sine lege” and “nulla poena sine lege” is just as valid as it is for adults and is a cornerstone of a democracy’s criminal law system.33 However, when dealing with anti-social - although not criminal - behaviour of children, there has been a trend in some member states to apply far-reaching interventions, including deprivation of liberty. Under the pretext of the protection of society from anti-social behaviour, children are drawn into intervention schemes in a manner that would not be tolerated if applied to adults. Standard legal guarantees, such as the burden of proof attributable to the state and right to a fair trial, are not always present. In many countries, the basic principles of law in criminal matters are not applied as fully for children as they are for adults. Children still get punished for so-called status offences (acts that are not defined as crimes in law and would go unpunished when committed by an adult).34
48. In order for the rule of law to be effectively and adequately observed, particularly in relation to children, member states are required under E(3) to introduce and/or maintain independent and effective complaints mechanisms, bearing in mind their suitability to the age and understanding of the child.
IV. Child-friendly justice before, during and after judicial proceedings
A. General elements of child-friendly justice
49. These elements of child-friendly justice are relevant for all possible actors in or outside court proceedings and apply irrespective of the child’s status, and apply also to specific groups of particularly vulnerable children.
1. Information and advice
50. In every individual case, from the very first contact with the justice system and on each and every step of the way, all relevant and necessary information should be given to the child.35 This right applies equally to children as victims, alleged perpetrators of offences or as any involved or affected party.36 Although it is not always practical to provide information at the beginning of the child’s involvement with the competent authorities, this should be done as soon as possible. However, there might be situations where information should not be provided to children (when contrary to their best interests).
51. Children need to be informed of their rights,37 but also of instruments they can use to actually exercise their rights or defend them where necessary.38 This is the first condition for protecting these rights. Guideline (1) provides a detailed, but not exhaustive, list of information children and their parents should receive.
52. Children may experience a lack of objective and complete information. Parents may not always share all pertinent information, or what they give may be biased. In this context, the role of children’s lawyers, ombudspersons and legal services for children is very important.
53. Guideline (2) reaffirms the right of the child to receive the information and advice in understandable language, adapted to age, maturity and abilities.
54. Information on the procedural system includes the need for detailed information on how the procedure will take place, what the standing and role of the child will be, how the questioning will be carried out, what the expected timing will be, the importance and impact of any given testimony, the consequences of a certain act, etc. They need to understand what is happening, how things could or would move forward, what options they have and what the consequences of these options are. They need to be informed of possible alternatives to proceedings. In some cases, mediation instead of court intervention may be more appropriate, while in other circumstances recourse to a court may offer more guarantees to a child. The different consequences of such a choice need to be clearly explained to the child, so that a well-informed decision can be made, although the child may not necessarily be the decision-maker in each case. This information could also be provided in a variety of child-friendly material containing relevant legal information (Guideline 4).
55. Guideline (5) imposes the obligation to provide information on all charges against the child, promptly and directly, both to child and to the parents and the rights the child shall enjoy in such cases. The child also needs to be given information about prosecutorial decisions, relevant post-trial developments and on how the outcome of the case will be determined. Information should also be given regarding possible complaints mechanisms, available systems of legal aid, representation or other possible advice they may be entitled to. When a judgment is delivered, the motivation ought to be provided in a way that the child can fully understand. This becomes even more important for children with special educational needs or low levels of literacy.39
56. In the case of cross-border civil law and family disputes, depending on maturity and understanding, the child should be provided with professional information relating to access to justice in the various jurisdictions and the implications of the proceedings on his/her life. Children face particular challenges where there is a history of family conflict and/or abuse.
In the cases of both V. and T. v. the United Kingdom, the Court noted that effective participation in the courtroom presupposes that the accused has a broad understanding of the nature of the trial process, including the significance of any penalty which may be imposed. Therefore, juvenile defendants must be, in any case, represented by skilled and child-experienced lawyers. 40
In some Council of Europe member states, private or subsidised services are available for children and young people where they can get information on children's rights in general or basic information on the legal issues of their own case or situation. In certain member states, such as Belgium and The Netherlands, there are “children's rights shops”,41 which could refer them to a lawyer, provide assistance in exercising their rights (e.g. writing to a judge to be heard in a case), etc.
2. Protection of private and family life
57. Anonymity and protection of personal data in relation to the mass media may be necessary for the child, as stipulated by several instruments.42 In this respect, special mention should be made of the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (CETS No. 108)43, which lists the set of commonly accepted standards concerning in particular the collection and processing of data as well as data quality. Like in the case of ECHR, children enjoy all rights under this Convention even though it does not explicitly refer to children’s rights. Additionally, its Article 6 provides for special safeguards when it comes to sensitive data, such as personal data related to criminal convictions. Other categories of data could be defined as sensitive by domestic law or treated as such by public authorities allowing for the better protection of children’s privacy. By way of example, one instrument44 lists the following categories: disciplinary proceedings, recording of violence cases, medical treatment in school, school orientation, special education of disabled people and social aid to poor pupils.
58. In its General Comment No. 10 on Children's Rights in Juvenile Justice,45 the Committee on the Rights of the Child recommends, among others, proceedings in camera, preserving confidentiality of records, delivering judgment which will not reveal the child’s identity, etc. The Court includes the possibility of having cases tried behind closed doors when the interest of the child or their privacy requires it,46 and Guideline (9) reminds member states of this good practice. This principle should however be reconciled with the principle of free access to judicial proceedings, existing in many member states.
59. Other possible ways to protect the privacy in the media are, inter alia, granting anonymity or a pseudonym, using screens or disguising voices, deletion of names and other elements that can lead to the identification of a child from all documents, prohibiting any form of recording (photo, audio, video), etc.
60. Member states have positive obligations in this respect. Guideline (7) reiterates that monitoring on either legally binding or professional codes of conduct for the press is essential, given the fact that any damage made after publication of names and/or photos is often irreparable.
61. Although the principle of keeping identifiable information inaccessible to the general public and the press remains the guiding one, there might be cases where exceptionally the child may benefit if the case is being revealed or even publicised widely, e.g. where a child has been abducted. Equally, the issue at stake may benefit from public exposure to stimulate advocacy or awareness raising.
62. The issue of privacy is particularly relevant in some measures intended to tackle anti-social behaviour of children. More specifically, the implementation of so-called Anti-Social Behaviour Orders (ASBOs), including the policy of “naming and shaming”, shows that in such cases personal data is not always kept away from the general public. Guideline (10) imposes a strict obligation in this respect on all professionals working with children except where there is a risk of harm to the child (cf. Article 12 of the Council of Europe Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse).
In the case of B. and P. v. the United Kingdom, the Court decided that proceedings concerning residence of children after divorce or separation are prime examples of cases where the exclusion of the press and public may be justified in order to protect the privacy of the child and parties and to avoid prejudicing the interests of justice.47
Furthermore, in the case of V. v. the United Kingdom the Court stated: “It follows that, in respect of a young child charged with a grave offence attracting high levels of media and public interest, it would be necessary to conduct the hearing in such a way as to reduce as far as possible his or her feelings of intimidation and inhibition.” 48
In the already mentioned cases of V. and T. v. the United Kingdom, of criminal proceedings against two young boys who murdered a toddler, the court stated inter alia.: “[…] it is essential that a child charged with an offence is dealt with in a manner which takes full account of his age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his ability to understand and participate in the proceedings.”49 Further: “it follows that, in respect of a young child charged with a grave offence attracting high levels of media and public interest, it would be necessary to conduct the hearing in such a way as to reduce as far as possible his or her feelings of intimidation and inhibition.”50
3. Safety (special preventive measures)
63. Concerning children as victims, these guidelines are inspired by the principles of the UN Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime,51 as well as to the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (CETS No. 201), which calls for providing for the safety of children, their families and witnesses on their behalf from intimidation, retaliation and repeated victimisation.52
64. Guideline (11) recalls that children, particularly vulnerable ones, should be protected from harm, whatever its form. It is inspired by many existing provisions to this effect.
65. Vetting of personnel in children’s services for child protection, as recommended by Guideline (12), has been introduced in certain member states, involving a check of criminal records as well as preliminary measures to be taken when a person allegedly committed criminal offences against children. This exercise should obviously respect the presumption of innocence, as well as the independence of justice.
66. Guideline (13) recalls the fundamental principle of the special need for protection when the alleged perpetrator is a parent, other member of the family, or a primary caregiver.
4. Training of professionals
67. Training in communication skills, in using child-friendly language, as well as developing knowledge on child psychology, is necessary for all professionals working with children (police, lawyers, judges, mediators, social workers and other experts), as stipulated by Guideline (14). However, knowledge of children's rights and procedural matters in this context is still not guaranteed for many of them.
68. Children's rights could and should be part of the curriculum, in schools as well as in specific fields of higher education (law, psychology, social work, police training, etc). This should cover the specifics of children's rights as well as legislation pertaining to children’s issues, such as family law, juvenile justice, asylum and immigration law, etc. Member states are encouraged to set up specific training courses.
69. The already mentioned Toledo Conference (cf. paragraph 6 above) concluded: “All
professionals – in particular judges, psychologists and lawyers – dealing with children in justice should receive appropriate information, awareness raising and training on appropriate interviewing techniques of a child.” 53
For several years now, the Flemish Bar Association and its Youth Lawyer Commission has been offering its members a two-year course on children's rights. The legal information is complemented with basic training in child psychology and development and practical training such as communicating with children. Attendance of all modules is obligatory in order to obtain a certificate as “youth lawyer”. In 2010, some 400 youth lawyers were trained.54
5. Multidisciplinary approach
70. The whole text of the guidelines, and in particular Guidelines (16)-(18), encourage member states to strengthen the interdisciplinary approach when working with children.
71. In cases involving children, judges and other legal professionals should benefit from support and advice by other professionals of different disciplines when taking decisions which will impact directly or indirectly on the present or future well-being of the child e.g. assessment of the best interests of the child, possible harmful effects of the procedure on the child, etc.
72. A multidisciplinary approach to children in conflict with the law is particularly needed. The existing and growing understanding of children’s psychology, needs, behaviour and development is not always sufficiently shared with professionals in the law enforcement areas.
In Iceland, Norway and Sweden, cases of abuse and violence can be dealt with in so-called “children’s houses”. Professionals from social services, forensic medical experts; paediatricians, police and prosecutor’s office work together, primarily in the initial stages of a police or social services investigation. They consult each other, plan and allocate the different tasks. Interviews with the children concerned are done in these houses, with the possibility of listening in by video link in an adjacent room. There are also rooms for medical examination and for counselling.
6. Deprivation of liberty
73. Particular attention should be paid to the way detained children are treated given their inherent vulnerability. Practical measures for detention of children are suggested in many Council of Europe instruments, among others on the European Rules for juvenile offenders subject to sanctions or measures, 55 or the CPT’s standards.56 As indicated in the former instrument, special efforts must be undertaken to avoid pre-trial detention. International children’s rights bodies are very critical about its use and seek to reduce it.57 However, pre-trial detention might in certain cases still be necessary, e.g. to avoid tampering with evidence, influence on witnesses, when there is a risk of collusion or flight, etc.
74. Since there are already numerous standards on the rights of juveniles deprived of their liberty, 58 the guidelines do not need to repeat them. The main principle is that no other children's right shall be restricted except the right to liberty, as a consequence of the deprivation of liberty. As Guidelines (19) and (20) clearly stipulate, remedies that involve detention, in whatever form, need to be avoided as much as possible so that detention should only be a measure of last resort, used for the shortest time possible and restricted to serious cases.59 This is a vital legal obligation. In addition, it is common knowledge that detention does not diminish the risk of recidivism.
75. As already indicated, the sections on the deprivation of liberty and the police do not purport to compile an exhaustive list of rights and safeguards, but represent an absolute minimum of rights children should enjoy. Guideline (21) should be read in this sense.
76. The issue of whether or not to detain children with adults is not a new one. In some cases, such as infants, it can be in their best interests not to be separated from a detained parent, or in the case of children of immigration detainees who should not be separated from their family. Several Council of Europe member states believe that in large, sparsely populated areas, it may exceptionally be in the best interests of the child to be detained in adult facilities (facilitating visiting of the parents residing hundreds of kilometres away, for example). However, such cases require particular vigilance on the part of detaining authorities, in order to prevent abuse of children by adults.
77. However, the Committee on the Rights of the Child has been very clear on this issue, based on Article 37, c, of the Convention of the Rights of the Child. The above-mentioned Recommendation Rec(2008) 11 also states that juveniles shall not be detained in institutions for adults, but in institutions specially designed for them.
78. Several references recall that the guidelines do apply to asylum seeking children and that specific attention should be given to this particularly vulnerable unaccompanied minors, including group; especially, unaccompanied minors, whether or not they are asylum-seekers, should not be deprived of their liberty solely on the absence of the residence status (Guideline 22).
In the case of Guvec v. Turkey, the Court reiterated its comments on excessive periods of detention. It expressly stated: “In at least three judgments concerning Turkey, the Court has expressed its misgivings about the practice of detaining children in pre-trial detention (see Selçuk v. Turkey, No. 21768/02, § 35, 10 January 2006; Koşti and Others v. Turkey, No. 74321/01, § 30, 3 May 2007; the aforementioned case of Nart v. Turkey, § 34) and found violations of Article 5 § 3 of the Convention for considerably shorter periods than that spent by the applicant in the present case. For example, in Selçuk the applicant had spent some four months in pre-trial detention when he was sixteen years old and in Nart the applicant had spent forty-eight days in detention when he was seventeen years old. In the present case, the applicant was detained from the age of fifteen and was kept in pre-trial detention for a period in excess of four and a half years. In the light of the foregoing, the Court considers that the length of the applicant’s detention on remand was excessive and in violation of Article 5 § 3 of the Convention.”60
B. Child-friendly justice before judicial proceedings
79. A complex but important issue is that of the minimum age of criminal responsibility. This age ranges among the member states of the Council of Europe from as young as eight to the age of majority. The text of Guideline (23) was inspired by Recommendation CM/Rec(2008)11 of the Committee of Ministers to member states on the European Rules for juvenile offenders subjects to sanctions or measures.61 The Convention of the Rights of the child does not set any age, but General Comment No. 10 on Children’s Rights in Juvenile Justice advises member states not to set this minimum age too low. The UN Standard Minimum Rules for the Administration of Juvenile Justice conveys a similar message. The European Network of Children’s ombudspersons advocates that the age be raised to 18 and recommends the development of innovative systems to respond to all offenders under the age of majority that genuinely focus on their (re)education, reintegration and rehabilitation. When not established by law, the minimum age of criminal responsibility should be determined taking into account among other things the level of understanding of the child.
80. In general, a preventive and reintegrating approach should be promoted and implemented in matters of juvenile justice. The criminal law system should not automatically be set in motion by minor offences committed by children, when more constructive and educative measures can be more successful. Moreover, member states should react to offences in proportion to, not only the circumstances and gravity of an offence, but also age, lesser culpability and needs of the child, as well as the needs of society.
81. Guidelines (24)-(26) recall that in several member states attention has been focused on provision of settlement to conflicts outside courts, by inter alia family mediation, diversion and restorative justice. This is a positive development in itself and member states are encouraged to ensure that children can benefit from these procedures, providing that they are not used as an obstacle to the child’s access to justice.
82. Such practices already exist in many Council of Europe member states and may refer to practices before, during as well as after judicial proceedings. They become particularly relevant in the area of juvenile justice. These guidelines do not make preference for any outside court alternatives, and should also be implemented within them, in particular in family conflicts, which involve not only strictly legal issues. The law has its limitations in this area and may have harmful effects in the long run. Mediated arrangements are reported to be more respected because the concerned parties are actively involved. Children may be able to play a role in them as well. Mandatory referral to mediation services, prior to court procedures, could also be considered: this is not to force people to mediate (which would be contradictory to the whole idea of mediation), but to give everyone the opportunity to be aware of such a possibility.
83. While there is a certain belief that children should be kept outside courts as much as possible, court procedure is not necessarily worse than an outside court alternative, as long as it is in line with the principles of child-friendly justice. Just like court settings, alternatives can also pertain risks in view of children's rights, such as the risk of diminished respect for fundamental principles like the presumption of innocence, the right to legal counsel, etc. Any choice made should therefore look into the distinct quality of a given system.
84. In the General Comment No. 12, the UN Committee on the Rights of the Child recommended: 62 “In case of diversion, including mediation, a child must have the opportunity to give free and voluntary consent and must be given the opportunity to obtain legal and other advice and assistance in determining the appropriateness and desirability of the diversion proposed.” Guideline (26) however requires that children should be guaranteed equivalent level of safeguards in both judicial and out-of-court proceedings.
85. To sum up, text of the guidelines encourages access to national courts for children as bearers of rights, in accordance with the jurisprudence of the Court, which they can access on their motion. However, such access is balanced and reconciled with alternatives to judicial proceedings.
In the canton of Fribourg, Switzerland, a mediation scheme has been worked out for children in conflict with the law. Searching for a balance between restoration and retribution, mediation looks out for the rights and interests of the victim and of the offender. In cases where certain criteria are met, the judge can refer the case to the mediator. While the mediator is in charge of the mediation as such, it is the judge who remains in charge of the criminal case. Whether or not an agreement is found between the parties, the outcome of the mediation would be communicated to the judge, who can either pronounce the agreement (in writing) or continue the proceedings, in case no agreement was reached.
In Norway, couples filing for a divorce with children under 16 must attempt mediation before being able to start a court procedure. The purpose is to help parents to reach an amicable agreement regarding where children should live, concerning exercise of parental responsibilities and visiting rights, to ensure that the children’s best interests are taken into account.
C. Children and the police
86. The police should also apply the guidelines on child-friendly justice. This applies to all situations where children might come in contact with the police, and it is, as stipulated by Guideline (27), of particular importance when dealing with vulnerable children.
87. It is axiomatic that a child-friendly attitude should also be present in potentially risky situations, such as arrest or questioning of children, covered by Guidelines (28) and (29). Save in exceptional cases, parents need to be promptly notified of the arrest of their child, and the child should always have access to a lawyer or any other entity which according to national law is responsible for defending children’s rights, as well as the right to notify parents or a person whom they trust. Contact with youth protection services should be granted as from the moment of apprehension.63 Only if the parents are not available should another person whom the child trusts be contacted (for example, his or her grandparents).
88. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) developed a series of standards which apply to detention of children by the police. In addition, in its comments on the European Draft Rules for Juvenile Offenders,64 it has pointed out that those rules should expressly stipulate that children, detained by the police, shall not be required to make any statement or sign any document related to the offence of which they are suspected without a lawyer or trusted person being present to assist them. These standards are supported by Guideline (30). States might usefully consider introducing special police units, particularly trained for these tasks.
In Okkali v. Turkey, the Court reviewed the case of a 12 year-old boy under police arrest, who claimed he had suffered ill-treatment. The Court considered that he should have enjoyed greater protection as a minor and that the authorities failed to take account of his particular vulnerability. The Court added that in cases like this, the child needs to have a lawyer assigned and the parents (or legal representatives) need to be informed of the detention.65
In the case of Salduz v. Turkey, the Court considered Article 6, paragraph 1, of the ECHR to have been violated since a 17 year-old suspect did not have access to a lawyer during five days in police custody. The Court found that: “in order for the right to a fair trial under Article 6, paragraph 1, to remain sufficiently “practical and effective”, access to a lawyer should be provided, as a rule, from the first interrogation of a suspect by the police […]”.66 The Court also noted that one of the specific elements of this case was the applicant's age. Having regard to a significant number of relevant international legal instruments concerning legal assistance to minors in police custody, the Court stressed the fundamental importance of providing access to a lawyer where the person in police custody was a minor.67
D. Child-friendly justice during judicial proceedings
89. These elements of child-friendly justice should be applied in all proceedings: civil, criminal and administrative.
1. Access to court and to the judicial process
90. Although children are legally considered to be the bearers of rights, as stipulated by Guideline (34), they are often not capable of exercising them effectively. Twenty years ago, the Parliamentary Assembly of the Council of Europe underlined in its Recommendation 1121 on the “Rights of children” that “children have rights that they may independently exercise themselves even against opposing adults.”68 The Convention of the Rights of the Child contains a certain right of initiative for court action by the child in Article 37d, where a child can challenge the legality of his or her deprivation of liberty. At present, there is strong support for the establishment of a complaints procedure under this Convention.69 This will hopefully give children the same kind of remedies to fight violations of their rights as granted to adults under several other universal human rights conventions.
91. In the same context, the ECHR gives “everyone” whose human rights are violated, the right to “an effective remedy before a national authority”70. This wording clearly includes children. The result is that children can bring their cases to the Court, although they are often not entitled to bring legal proceedings under their domestic law.71
92. Given the fact that most legislation on legal incapacity of children is drafted with a view of protecting the children, it is nevertheless essential that this lack of capacity is not used against them when their rights are being violated or when no one else defends these rights.
93. Guideline (34) also recommends that member states’ legislation facilitate where appropriate access to court for children with sufficient understanding or their rights. It also recommends the use of remedies to protect these rights, upon receiving adequate legal advice.
94. Attention must be given to the strong link between issues of access to justice, proper legal counselling72 and the right to voice an opinion in court procedures. It is not the aim of these guidelines to encourage children to address the courts for no apparent reason or legal ground. It goes without saying that children, like adults, should have a solid legal basis to bring a case to court. Where the child’s rights need defending and whenever the legal representative does not do so on behalf of the child, there should be the possibility to have the case reviewed by a judicial authority. Access to court for children may also be necessary in cases where there can be a conflict of interests between the child and the legal representative.
95. Access to court can be based on a set age limit or on the notion of a certain discernment, maturity or level of understanding. Both systems have advantages and disadvantages. A clear age limit has the advantage of objectivity for all children and guarantees legal certainty. However, granting children access based on their own individual discernment gives the opportunity for adaptation to every single child, according to their levels of maturity. This system can pose risks due to the wide margin of appreciation left to the judge in question. A third possibility is a combination of both: a set legal age limit with a possibility for a child under this age to challenge this.73 This may however raise the additional problem that the burden of proof of capacity or discernment lies with the child.
96. No age limit is set in these guidelines, as it tends to be too rigid and arbitrary and can have truly unjust consequences. It also cannot fully take into account the diversity in capacities and levels of understanding between children. These can vary greatly depending on the individual child’s evolutive capacities, life experiences, cognitive and other skills. A 15 year-old can be less mature than a 12 year-old, while very young children may be quite explicit and capable of assessing and understanding their own specific situation. Reference to individual capacities, maturity and level of understanding, rather than the objective age, is more appropriate in acknowledging the real capacities of a child.
97. While recognising that all children, regardless of age or capacities, are bearers of rights, age is in fact a major issue in practice, as very young children, or children with certain disabilities, will not be able to effectively protect their rights on their own. Member states should therefore set up systems in which designated adults can act on behalf of the child: they can be either parents, lawyers, or other institution or entity which according to national law is responsible for defending children’s rights. These persons or institutions should not only get involved or be recognised as such when procedures are already pending, but they should also have the mandate to actively initiate cases whenever a child’s right has been violated or is in danger of being violated.
98. Guideline (35) recommends that member states remove all obstacles for the children’s access to court. It gives examples such as cost of the proceedings and the lack of legal counsel, but recommends that other obstacles be removed as well. Such obstacles may be of a different nature. In case of a possible conflict of interests between children and their parents, the requirement of parental consent should be avoided. A system needs to be developed whereby the undue refusal of a parent cannot keep a child from having recourse to justice. Other obstacles for access to justice may be of a financial or psychological nature (cf. legal aid). Procedural requirements should be limited as far as possible.74
99. In some cases, a child cannot challenge certain acts or decisions during its childhood, due to trauma, in cases of, for example, sexual abuse or highly conflictual family matters.
100. In that case, Guideline (36) recommends that access to court should be granted for a period of time after the child has reached the age of majority. It therefore encourages member states to review their statutes of limitations. The Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse [CETS No.: 201] could usefully serve as an inspiration in this regard.75
The Court, in the case Stubbings and Others v. the United Kingdom76, considered that: “There has been a developing awareness in recent years of the range of problems caused by child abuse and its psychological effects on victims, and it is possible that the rules on limitation of actions applying in member states of the Council of Europe may have to be amended to make special provision for this group of claimants in the near future.”77
2. Legal counsel and representation78
101. If children are to have access to justice which is genuinely child-friendly, member states should facilitate access to a lawyer or other institution or entity which according to national law is responsible for defending children’s rights, and be represented in their own name where there is, or could be, a conflict of interest between the child and the parents or other involved parties. This is the main message of the Guideline (37). The Convention on the Exercise of Children’s Rights79 states: “Parties shall consider granting children additional procedural rights in relation to proceedings before a judicial authority affecting them, in particular […] a separate representative […] a lawyer”.80
102. Guideline (38) imposes the obligation to provide children access to free legal aid. This should not necessarily require a completely separate system of legal aid. It might be provided as is the case for adults, or under more lenient conditions, and be dependent on the financial means of the holder of the parently responsibility or a child. In any case, the legal aid system has to be effective in practice.
103. Guideline (39) describes the professional requirements for the lawyers representing children. It is also important that legal fees of the child’s lawyer are not charged to the parents, directly or indirectly. If a lawyer is paid by the parents, in particular in cases with conflicting interests, there is no guarantee that he or she will be able to independently defend the child’s views.
104. A system of specialised youth lawyers is recommended, while respecting the child’s free choice of a lawyer. It is important to clarify the exact role of the child’s lawyer. The lawyer does not have to bring forward what he/she considers to be in the best interests of the child (like a guardian or a public defender), but to determine and defend the child’s views and opinions, as in the case of an adult client. The lawyer should seek the child’s informed consent on the best strategy to use. If the lawyer disagrees with that opinion, he or she should try to convince the child, as he or she would with any other client.
105. The lawyer’s role is different from the guardian ad litem’s, introduced by Guideline (42), as the latter is appointed by the court, not by “a client” as such, and should help the court in defining what is in the best interests of the child. However, combining the functions of a lawyer and a guardian ad litem in one person should be avoided, because of the potential conflict of interests that may arise. The competent authority should in certain cases appoint either a guardian ad litem or another independent representative to represent the views of the child. This could be done on request of the child or another relevant party.
In Georgia, the right to legal aid for persons under the age of 18 in criminal cases is granted ex officio, since they are considered to be “socially vulnerable”. No other condition is required for those children to benefit from this service.
3. Right to be heard and to express views
106. General Comment No. 12 of the Committee on the Rights of the Child interprets the right of the child to be heard, one of the four guiding principles of the Convention of the Rights of the Child using: “shall assure” which is a legal term of special strength, leaving no leeway for states parties’ discretion.81 This comment elaborates on the fact that age alone cannot determine the significance of a child’s views.82 In its General Comment No. 5, the Committee rightly noted that: “appearing to listen to children is relatively unchallenging; giving due weight to their views requires real change.”83
107. The European Convention on the Exercise of Children's Rights combines the right to be heard with the right to be informed in its Article 3: in judicial proceedings, children should receive all relevant information, be consulted and express their views and be informed on the possible consequences of compliance with these views and the possible consequences of any decision.
108. In these guidelines, reference is made to concepts such as “age and maturity” and “sufficient understanding”, which implies a certain level of comprehension, but does not go as far as to demand from the child a full comprehensive knowledge of all aspects of the matter at hand.84 Children have the right to give their views freely, without any pressure and without manipulation.85
109. The UN Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime use the wording “child sensitive” as “an approach that balances the child’s right to protection and that takes into account the child’s individual needs and views”.86
110. Laws should be clearly formulated in order to ensure legal equality for all children, irrespective of age, in particular when a child takes the initiative to be heard, a sufficient level of understanding should be presumed. Age, however, still plays a major role in “granting” children their basic right to be heard in matters that affect them (Guideline 45). However, it must be pointed out that, in some circumstances, it is the child’s duty to be heard (i.e. to give evidence).
111. Children need to know clearly what will happen and what the status of their given opinion or statement will be.87 The judge should not refuse to hear the child without good reasons unless this is in the best interests of the child (Guideline 47). They should be clearly informed that if a judge does hear them, this does not mean they will “win” the case. In order to gain or obtain the trust and respect for the given judgment, particular effort should be made by the child’s lawyer to explain why the child’s opinion has not been followed or why the given decision has been made, as it is done for adults (Guideline 48).
112. Further, children have the right to express their views and opinion on any issue or case that involves or affects them. They should be able to do so, regardless of their age, in a safe environment, respectful of their person. They have to feel at ease when they talk to a judge or other officials. This may require that judges omit certain formalities, such as wearing wigs and gowns or hearing the child in the courtroom itself; by way of example, it can be helpful to hear a child in the judge’s chambers.
113. It is important that the child can speak freely and that there is no disruption. This may in practice mean that no other people should be allowed in the room (e.g. the parents, the alleged perpetrator), and that the ambiance is not disturbed by unwarranted interruption, unruly behaviour or transit of people in and out.
114. Judges are often untrained in communicating with children and specialised professionals are seldom called upon to support them in this task. As already indicated (paragraph 96 above), even young children can state their views clearly, if they are assisted and supported correctly. Judges and other professionals should actually look for the child’s own views, opinions and perspective on a case.
115. Depending on the wishes and the interests of the child, serious consideration should be given to who will listen to the child, presumably either the judge or an appointed expert.88 Some children may prefer to be heard by a “specialist” who would then convey his or her point of view to the judge. Others, however, make it clear that they prefer to talk to the judge himself/herself, since he/she is the one who will make the decision.
116. While it is true that there is a risk of children being manipulated when they are heard and express their views (e.g. by one parent against the other), all efforts should be made not to let this risk undermine this fundamental right.
117. The Committee on the Rights of the Child warns against a tokenistic approach and unethical practices,89 and lists the basic requirements for effective and meaningful implementation of the right to be heard.90 Processes for hearing children should be transparent and informative, voluntary, respectful, relevant, child friendly, inclusive, supported by training, safe and sensitive to risk, and finally accountable.
In a case of inter-country adoption with Italian adopters of Romanian children (case of Pini and Others v. Romania), the Court was very clear on the right of the children to be heard and that their views be taken seriously: “It must be pointed out that in the instant case the children rejected the idea of joining their adoptive parents in Italy once they had reached an age at which it could be reasonably considered that their personality was sufficiently formed and they had attained the necessary maturity to express their opinion as to the surroundings in which they wished to be brought up”. 91“The children’s interests dictated that their opinions on the subject should have been taken into account once they had attained the necessary maturity to express them. The children’s constant refusal, after they had reached the age of 10, to travel to Italy and join their adoptive parents carries a certain weight in this regard.”92
In the case of Hokkanen v. Finland, a father claimed custody of his daughter who had been living with her grandparents for years. The child did not want to live with her father and the Court agreed that “the child had become sufficiently mature for her views to be taken into account and that access should therefore not be accorded against her wishes”. 93
4. Avoiding undue delay
118. Cases in which children are involved need to be dealt with expeditiously, and a system of prioritising them could be considered.94 The urgency principle is set out in Guideline (50). It should be borne in mind that children experience time differently than adults and the time element is very important to them: one year of proceedings in a custody case may seem much longer to a ten-year old than to an adult. The rules of court should allow for such a system of prioritising in serious and urgent cases or when possibly irreversible consequences could arise if no immediate action is taken [Guideline (51) covering family law cases].
119. Other examples of this principle can be found in relevant Council of Europe instruments. One of them demands that states ensure that the investigations and criminal proceedings are treated as priority and carried out without any unjustified delays.95 This is also very important to allow victims to be able to start their recovery. Another instrument specifically recommends “ensuring that minors are treated more rapidly, avoiding undue delay, so as to ensure effective educational action.”96
120. Respecting the best interests of the child might require flexibility on the part of judicial authorities, while enforcing certain decisions, in accordance with the national law, as indicated by Guideline (53).
In two cases against Germany, the time element was discussed by the Court, which found that in cases of parent-child relationships there is a duty to exercise exceptional diligence in view that the risk of passage of time may result in a de facto determination of the matter and that the relation of a child with one of its parents might be curtailed.97
In the case of Paulsen-Medalen and Svensson v. Sweden, the Court found that Article 6, paragraph 1 had been violated since the authorities had not acted with the required exceptional diligence when handling a dispute on access.98
Avoiding undue delay is also important in criminal cases. In the case of Bouamar v. Belgium, an especially speedy judicial review was demanded in cases of detention of minors. Unjustified lapses of time were considered to be scarcely compatible with the speed required by the terms of Article 5, paragraph 4 of the ECHR.99
5. Organisation of the proceedings, child-friendly environment and child-friendly language
121. Child-friendly working methods100 of justice should enable children to feel safe. Being accompanied by a person whom they can trust can make them feel more comfortable in the proceedings. The Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse101 stipulates that a child may be accompanied by his or her legal representative or an adult of his or her choice, albeit this cannot be just anybody. A reasoned decision can be taken against the presence of a given accompanying person.
122. The architectural surroundings can make children very uncomfortable. Court officials should familiarise children inter alia with the layout of the court, and identities of the officials involved (Guideline 55). Even for adults, courthouses can be rather oppressive or intimidating. While this is difficult to change, at least for the existing court facilities (Guideline 62), there are ways in which treatment of children in these courthouses can be improved by working with children in a more child-sensitive way.
123. Court facilities may include where possible special interview rooms, which take into account best interests of the child. Equally, child-friendly court settings may mean that no wigs or gowns or other official uniforms and clothing are worn. This can be implemented in view of the child’s age or the function of the official. Depending on the circumstances and on the views of the child, it may well be that, for example, uniforms make it clear to the child that he/she is talking to a police officer and not to a social worker, which has its relevance. This could also add to the feeling of the child that matters affecting him/her are taken seriously by the competent authority. To sum up, the setting may be relatively formal, but the behaviour of officials should be less formal and in any case should be child-friendly.
124. More importantly, child-friendly justice also implies that children understand the nature and scope of the decision taken, as well as its effects. While the judgment and the motivation thereof cannot always be recorded and explained in child-friendly wording, due to legal requirements, children should have those decisions explained to them, either by their lawyer or another appropriate person (parent, social worker etc).
125. Specific youth courts, or at least youth chambers, could be set up for offences committed by children.102 As far as possible, any referral of children to adult courts, adult procedures or adult sentencing should not be allowed.103 In line with the requirement of the specialisation in this area, specialised units could be established within law enforcement authorities (Guideline 63).
In several cases against the United Kingdom, involving juvenile offenders, the court stressed that special measures have to be taken to modify the adult courts’ procedure in order to attenuate the rigours of an adult trial in view of the defendant’s young age. For example, the legal professionals should not wear wigs and gowns and the juvenile defendant shall not be seated at a raised dock, but instead be allowed to sit next to his legal representative or social worker. Hearings should be conducted in a way that their feelings of intimidation and inhibition could be reduced as far as possible.
After the cases T and V v. the United Kingdom, where the national court settings were considered to be intimidating for a child, a Practice Direction for trials of children in the Crown Court was drafted. The aim is to avoid intimidation, humiliation or distress for the child on trial. Elements of this Practice Direction are inter alia: possibility for the child to visit the courtroom before the trial to become familiarised with it, possibility of police support to avoid intimidation or abuse by the press, no wigs or gowns, explanation of the procedure in terms the child can understand, restricted attendance of court’s hearings, etc.
The Polish Ministry of Justice promotes and implements the concept of child-friendly interview rooms in co-operation with an NGO. The main goal is to protect child witnesses and victims of crime, especially sexual and domestic violence crimes, through putting into practice principles of interviewing children in friendly conditions and by competent staff. The procedure ensures that the interview of a child is carried out by a judge in the presence of a psychologist. Other persons involved (prosecutor, lawyer, the accused, private complainant) are present in a separate room and have the possibility to participate in the interview thanks to communication systems between rooms, two-way mirror and/or live broadcasting. Important details to make children feel more comfortable include inter alia: guaranteed privacy (soundproof door between interviewing room and other rooms/premises); room equipped in accordance with the child’s needs in order to ensure physical and mental safety of a child during interview, decorated in neutral colours and furnished in a way to ensure that children can spend time comfortably (two sizes of tables and chairs, sofa or armchair, soft carpet); equipped with materials and equipment useful in gathering information from a child (coloured pencils, paper, dolls, etc).
6. Evidence/statements by children
126. The issue of collecting evidence/statements from children is far from being simple. As standards are rare in this area (such as the UN Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime)104, the need was felt to address those issues, as the conduct of such evidence/statements requires practical guidance.
127. As stipulated by Guideline (64), this should as far as possible be carried out by trained professionals. In the same context, Guideline (66) recommends that when more than one interview is needed, they should be carried out preferably by the same person for reasons of consistency and mutual trust, but that the number of interviews should be as limited as possible (Guideline 67).
128. For self-evident reasons, specific arrangements should be made for gathering evidence, especially from children victims, in the most favourable conditions. Allowing evidence to be brought by audio, video or TV-link are examples of these practices, as well as providing testimony prior to the trial, having carried it out by experts and avoiding visual or other contact between the victim and the alleged perpetrator (Guideline 68), or to give evidence without the presence of the alleged perpetrator (Guideline 69). However, in particular cases, such as sexual exploitation, video recordings for interviews may be traumatising for victims. The possible harm or secondary victimisation therefore needs to be assessed diligently and other methods, such as audio recording, will need to be considered to avoid re-victimisation and secondary trauma.
129. Member states’ procedural laws in this domain vary considerably, and there might be less strict rules on giving evidence by the children. In any case, member states should give priority to the child’s best interests in the application of rules of evidence. Examples provided by Guideline (70) include the absence of the requirement for oath or other similar declarations. These guidelines do not intend to affect the guarantees of the right to a defence in the different legal systems; however, they do invite member states to adapt, where necessary, some elements of the rules on evidence so as to avoid additional trauma for children. In the end, it will always be the judge who will consider the seriousness and validity of any given testimony or evidence.
130. Guideline (70) also indicates that these adaptations to children should not in themselves diminish the value of a given testimony. However, preparing a child witness to testify should be avoided because of the risk of leading and guiding the child too much. Establishing model interview protocols [Guideline (71)] should not necessarily be the task of the judges, but more of national judicial authorities.
131. Although using audio or video recording of children’s statement has some advantages, as it serves to avoid repetition of often traumatic experiences, a direct testimony in front of an interrogating judge may be more appropriate for some children who are not victims but alleged perpetrators.
132. As already indicated, age should not be a barrier for the child’s right to fully participate in the judicial process.105 Their testimonies should not be presumed invalid or untrustworthy simply on the basis of their age, according to Guideline (73).
133. Where children are to be asked or they express the wish to give evidence in family proceedings, due regard should be given to their vulnerable position in that family and to the effect such testimony may have on present and future relationships. All efforts should be made to ensure that the child is made aware of the consequences of the testimony and supported in the giving of evidence by any of the means already referred to.
The Court has recognised the specific features of proceedings concerning sexual offences. In the case of S.N. v. Sweden, the Court found that: “such proceedings are often conceived of as an ordeal by the victim, in particular when the latter is unwillingly confronted with the defendant. These features are even more prominent in a case involving a minor. In the assessment of the question whether or not in such proceedings an accused received a fair trial; account must be taken of the right of respect for the private life of the perceived victim. Therefore, the Court accepts that in criminal proceedings concerning sexual abuse certain measures may be taken for the purpose of protecting the victim, provided that such measures can be reconciled with an adequate and effective exercise of the rights of the defence”.106
In the same case, attention was also given to the possibly leading nature of some questions. To avoid the negative effects thereof, forensic psychology experts, with specific training and knowledge, could be called upon.107
In the case of W.S. v. Poland, the Court suggested possible ways to test the reliability of a young child victim and pointed out that this could be done in a less invasive manner than direct questioning. Several sophisticated methods might be applied, such as having the child interviewed in the presence of a psychologist with questions being put in writing by the defence, or in a studio enabling the applicant or his lawyer to be present indirectly at such an interview, via video-link or one-way mirror.108
E. Child-friendly justice after judicial proceedings
134. There are many measures which could be taken to make justice child-friendly after judicial proceedings have taken place. This starts with the communication and explanation of the given decision or judgment to the child (Guideline (75). This information should be supplemented with an explanation on possible measures to be taken, including an appeal or address to an independent complaint mechanism. This should be done by the child’s representative be it the lawyer, guardian ad litem, or legal representative, depending on the legal system. Guidelines 75, 77 and 81 refer to those children’s representatives.
135. Guideline (76) recommends that steps be taken to facilitate the execution of decisions/rulings involving and affecting children without delay.
136. In many cases, and in particular civil ones, the judgment does not necessarily mean that the conflict or problem is definitely settled: family matters are good example, and they were dealt with by Guidelines (78) and (79). In this sensitive area, there should be clear rules on avoiding force or coercion in the implementation of, for example, visitation arrangements, to avoid further traumatisation. Therefore, parents should rather be referred to mediating services or neutral visitation centres to end their disputes instead of having court decisions executed by police. The only exception is when there is a risk to the well-being of the child. Other services, such as family supporting services, also have a role to play in the follow-up of family conflicts, to ensure the best interests of the child.
In cases of enforcement of decisions on family law issues, such as access and custody rights, the Court held on several occasions that what is decisive is the question of whether national authorities have taken all necessary steps to facilitate the execution as can reasonably be demanded in the special circumstances of each case.
In Austria, the “Besuchscafe” offers children the possibility to stay in touch with both parents after a divorce or separation in a safe and supportive setting. The right of access can be provided in special premises under supervision of trained staff, to avoid conflicts between the parents, whenever a visitation right is exercised. This kind of accompanied visitation can be ordered by the court or requested by (a) parent(s). The central issue is the well-being of the child and avoiding that the child is caught in the middle of a conflict between the parents.
137. Guidelines (82) and (83) deal with children in conflict with law. Particular attention is paid to the successful integration into the society, the importance of non-disclosure of criminal records outside the justice system, and legitimate exceptions to this important principle. Exceptions could be made for serious offences, inter alia for reasons of public safety and when employment with children is concerned. An example would be the employment of someone who had the history of child’s abuse. Guideline (83) aims at protecting all categories of children, not only the particularly vulnerable ones.
138. In the case of Bouamar v. Belgium, the Court reviewed the issue of a juvenile offender who was put in and out of an adult prison nine times. Although detaining minors in adult prisons was at the time allowed under the youth protection law, the European Court of Human Rights concluded that: “the nine placement orders, taken together, were not compatible with sub-paragraph (d) (art. 5-1-d). Their fruitless repetition had the effect of making them less and less “lawful” under sub-paragraph (d) (art. 5-1-d), especially as Crown Counsel never instituted criminal proceedings against the applicant in respect of the offences alleged against him.”109
The British foundation Barnardo’s developed the advocacy service (BAS) to young people in several institutions for young offenders throughout the United Kingdom, providing them with independent advocacy, assisting them with issues relating to welfare, care, treatment and planning for resettlement while they are detained. Besides face-to-face meetings within one week of incarceration, young people can contact the service or rely on a free helpline. BAS supports young people to understand the system and contact the relevant professionals to help them solve their problems.
V. Promoting other child-friendly actions
139. It goes without saying that a real improvement in the area of children’s rights and child-friendly justice requires proactive approach by the Council of Europe member states, which are being encouraged to carry out a number of different measures.
140. Actions (1)-(4) encourage research into this area, exchange of practices and co-operation, and the awareness raising activities in particular by creating child-friendly versions of legal instruments. They also express support for well-functioning information offices for children’s rights.
141. Investing in children’s rights education and dissemination of children's rights information is not only an obligation under the Convention of the Rights of the Child,110 but is also a preventive measure against violations of children's rights. Knowing one’s rights is the first prerequisite of “living” one’s rights and being able to recognise possible or upcoming violations in time.111
Many organisations have been making child-friendly versions of the Convention of the Rights of the Child and other relevant documents on children's rights. One of the examples is the child-friendly version of the UN Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime, made by UNICEF and the UN Office on Drugs and Crime.
142. Measures envisaged under Actions (5)-(7) aim to facilitate children’s access to courts and complaints mechanisms, and consider a number of possible measures in this respect (establishment of specialised judges and lawyers, facilitation of the role of the civil society and independent bodies at national, regional and universal level). In this domain, states should envisage the use of collective complaints and class action suits. A good example of the collective complaints mechanism of the revised European Social Charter is that it is accessible, no individual victim is needed and not all domestic remedies need to be exhausted. Children’s ombudspersons, children's rights NGOs, social services, etc. should be able to lodge complaints or start procedures in the name of a specific child.
143. It is worth noting that new strategies are also promoted at international level, such as the already mentioned campaign in favour of a complaints procedure under the Convention on the Rights of the Child.
144. Actions (8) and (9) focus attention on the need for appropriate education, training and awareness-raising measures, while actions (10) and (11) express support for appropriate specialised structures and services.
VI. Monitoring and assessment
145. Member states are encouraged to carry out a number of measures to implement those guidelines. They should ensure their wide dissemination among all authorities responsible for or otherwise involved with children’s rights in justice. One possibility would be the dissemination of the guidelines in its child-friendly versions.
146. Member states should also ensure a review of domestic legislation, policies and practice in keeping with these guidelines, as well as a periodic review of working methods in this area. They are also invited to prescribe specific measures for complying with the letter and spirit of these guidelines.
147. In this respect, the maintenance or establishment of a framework, including one or more independent mechanisms (such as ombudsperson, children’s ombudspersons) is of paramount importance for the promotion and monitoring of the implementation of these guidelines.
148. Lastly, it is plain that the civil society organisations, institutions and bodies promoting and protecting the right of the child should be given an active role in the monitoring process.
1 This document has been classified restricted at the date of issue; it will be declassified in accordance with Resolution Res(2001)6 on access to Council of Europe documents.
2 The report is available on the website: www.coe.int/childjustice.
3 At present, the Council of Europe works on recommendations on the legal status of children and parental responsibilities, as well as on child-friendly health care services, and intends to carry out similar consultations.
4 Information about the Council of Europe’s work on child-friendly justice and its progress is available on the website: www.coe.int/childjustice.
5 Persons up to 18 years of age.
6 U. Kilkelly, Youth courts and children's rights: the Irish experience, in Youth Justice, p. 41: “The Convention of the Rights of the Child, adopted in 1989, strengthened this protection by providing for a range of due process standards that both recognised the child’s right to a fair trial, but went further in recognising the need to adapt the trial process to the needs and rights of children.”
7 F. Tulkens, International justice for children, Monograph 3, Council of Europe publishing, 2008, p. 17-33.
8 This is all the more necessary given that the terms of reference of the Group of specialists on child-friendly justice include looking for lacunae in these matters.
9 PACE document (AS/Jur (2009) 40) on “The specificity and added value of the acquis of the Council of Europe treaty law”.
10 For more information, see General Comment No. 12 on the Right of the Child to be heard (CRC/C/GC/12, 1 July 2009) and comments under IV, D, 3, the right to be heard. See also Recommendation of the Committee of Ministers on children’s participation in family and social life Rec(98) 8E, 18 September 1998, para. 4: “participation is a decisive factor for securing social cohesion and for living in a democracy in accordance with the values of a multicultural society and the principles of tolerance”; para. 5: “participation of children is crucial in influencing the conditions of their own lives, in that participation is not only involvement in institutions and decision-making but above all a general pattern of democracy relevant to all areas of family and social life”. See furthermore ECHR (Grand Chamber) judgment of 16 December 1999, T. v. UK, No. 24724/94, para. 83, and judgment of 16 December 1999, V. v. UK, No. 24888/94, para. 85: “[...] Article 6, read as a whole, guarantees the right of an accused to participate effectively in his criminal trial”.
11 Convention of the Rights of the Child, Article 12.
12 Ibid., Article 12.1.
13 General Comment No. 12 on the Right of the Child to be heard, paras 20-21 (CRC/C/GC/12, 1 July 2009).
14 UN Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime (ECOSOC Res 2005/20, 22 July 2005), para. 18.
15 Some member states penalise parents who fail to honour custody and access commitments notwithstanding the fact that it may be the child who refuses to comply. In other states, parents may receive custodial sentences for failing to adhere to a court decision while such eventuality could be avoided by including the child in any decision made on his/her behalf.
16 ECHR (Fourth Section), judgment of 15 June 2004, S.C. v. UK, No. 60958/00, para. 29.
17 ECHR, ibid., para. 35.
18 ECHR (Grand Chamber), judgment of 8 July 2003, Sahin v. Germany, No. 30943/96, para. 73.
19 ECHR (Chamber), judgment of 23 September 1994, Hokkanen v. Finland, No. 19823/92, para. 61.
20 For practical suggestions see UNHCR Guidelines on Determining the best interests of the child, 2008 (http://www.unhcr.org/refworld/docid/48480c342.html).
21 See T. Hammarberg (http://www.coe.int/t/commissioner/Viewpoints/090202_en.asp).
22 General Comment No. 10 on Children's Rights in Juvenile Justice (CRC/C/GC/10, 25 April 2007), para. 71. Also see Recommendation R (87) 20 of the Committee of Ministers.
23 General Comment No. 10 on Children's Rights in Juvenile Justice (CRC/C/GC/10, 25 April 2007).
24 Cf. particularly ECHR (Grand Chamber), judgment of 13 July 2000, Elsholz v Germany, No. 25735/94, para. 53, and judgment of 8 July 2003, Sommerfeld v Germany, No. 31871/96, paras 67-72. See furthermore the partly dissenting opinion of Judge Ress joined by Judges Pastor Ridurejo and Türmen in Sommerfeld v. Germany (ibid.), para. 2.
25 ECHR (Chamber), judgment of 9 June 1998, Bronda v. Italy, No. 40/1997/824/1030, para. 62.
26 ECHR (Grand Chamber), judgment of 8 July 2003, Sahin v. Germany, No. 30943/96, para. 66.
27 ECHR (Second Section), judgment of 22 June 2004, Pini and Others v. Romania, Nos. 78028/01 and 78030/01, para. 155.
28 See for example Preamble of the International Covenant on Civil and Political Rights, as well a Preamble and Article 40 para. 1 of the UN Convention of the Rights of the Child.
29 UN Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime (ECOSOC Res 2005/20, 22 July 2005), III, 8, a and I, 6.
30 See also the report by the Registry of the ECtHR, Access of children to justice – Specific focus on the access of children to the ECtHR as well as its case-law related to children’s access to national jurisdictions’ in Compilation of texts related to child-friendly justice, Directorate General of Human Rights and Legal Affairs, 2009, p. 11-19.
31 Brian Z. Tamanaha traced the idea back to Aristotle: “It is better for the rule of law to rule than one of the citizens’”, and continues: “so even the guardians of the laws are obeying the laws”. Cited from Tom Bingham, “The Rule of Law”, Allen Lane, Penguin Group, 2010, page 3.
32 Ukraine-Tyumen v. Ukraine, no. 22603/02, § 49, 22 November 2007.
33 ECHR, Article 7, Convention of the Rights of the Child, Article 40, para. 2,a.
34 See CRIN report on status offences on http://www.crin.org/docs/Status_Offenses_doc_2_final.pdf
35 This is an important task of children’s ombudspersons and children's rights organisations.
36 This right is also covered in a variety of instruments such as the Convention of the Rights of the Child, (Article 13 para. 1, 37 para. d, 40 para. 2,b,(ii), 42), the UN Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime (ECOSOC Res. 2005/20, 22 July 2005, VII) and the European Convention on the Exercise of Children's Rights. (CETS No. 160), Article 3).
37 Article 42, Convention of the Rights of the Child.
38 This should not be limited to the strict legal information, but also, for example, on the existence of an ombudsperson or other services for children.
39 The information may have to be translated in a language the child understands (a foreign language, Braille or other) as is the case for adults and the formal legal terminology will have to be explained so that the child can fully understand its meaning.
40 ECHR (Grand Chamber), judgment of 16 December 1999, T. v. UK, No. 24724/94, para. 88, and judgment of 16 December 1999, V. v. UK, No. 24888/94, para. 90.
41 The “Kinderrechtswinkel” in Ghent and Bruges and the “Service Droits des jeunes” in most major cities in the French community in Belgium.
42 By way of example, Article 11.3 of the Convention on Action against Trafficking in Human Beings deals with privacy and protects personal data while urging states to set up regulatory measures for the press. The UN Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime (ECOSOC Res 2005/20, 22 July 2005), para. X, 27. , states: “Information related to a child’s involvement in the justice process should be protected. This can be achieved through maintaining confidentiality and restricting disclosure of information that may lead to identification of a child who is a victim or a witness in the justice process”. This is also described in the UN Standard Minimum Rules for the Administration of Juvenile Justice: “The juvenile's right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling. In principle, no information that may lead to the identification of a juvenile offender shall be published.”
43 This instrument has a global vocation as it is open to the accession of non-member States of the Council of Europe, if their legislation meets the Convention’s requirements.
44 Opinion 2/2009 of the EU Data Protection Working Party on the Protection of children’s personal data (General guidelines and the special case of schools).
45 General Comment No. 10 on Children's Rights in Juvenile Justice (CRC/C/GC/10, 25 April 2007).
46 Rules of the Court, art. 63.
47 ECHR B. and P. v. UK, judgment of 24 April 2001, Nos. 36337/97 et 35974/97, para. 38.
48 ECHR (Grand Chamber), judgment of 16 December 1999, V. v. UK, No. 24888/94, para. 87.
49 ECHR (Grand Chamber), judgment of 16 December 1999, T. v. UK, No. 24724/94, para. 84, and judgment of 16 December 1999, V. v. UK, No. 24888/94, para. 86.
50 ECHR (Grand Chamber), judgment of 16 December 1999, T. v. UK, No. 24724/94, para. 85, and judgment of 16 December 1999, V. v. UK, No. 24888/94, para. 87.
51 UN Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime (ECOSOC Res 2005/20, 22 July 2005).
52 Article 31, 1, f.
54 More information (in Flemish) at www.jeugdadvocaat.be.
55 Recommendation Rec (2008) 11 of the Committee of Ministers of the Council of Europe and Council of Europe.
56 CPT standards (CPT/inf/E (2002) 1, Rev 2009 on http://www.cpt.coe.int/en/docsstandards.htm).
57 See, for example, the Concluding Observations for Belgium: “The Committee recommends that the state party: […] (c) […] ensure, in accordance with Article 37 of the Convention, that the deprivation of liberty is only used as a measure of last resort, for the shortest possible time, that guarantees of due process are fully respected and that persons under 18 are not detained with adults.” (Convention of the Rights of the Child/C/15/Add. 178, para. 32).Convention of the Rights of the Child, art. 37 and 40.
58 Convention of the Rights of the Child, art. 37 and 40.
59 Recommendation of the Committee of Ministers Rec(2008) 11, para. 59.1.
60 ECHR (Second Section), judgment of 20 January 2009, Guvec v. Turkey, N° 70337/01, paras 109-110.
61 Cf footnote 58.
62 General Comment No 12 on the Right of the Child to be heard (CRC/C/GC/12, 1 July 2009), para.59.
63 A recent judgment by a Belgian juvenile court (Antwerp, 15 Feb 2010) acquitted a juvenile offender because the judge found his defence rights to be violated since he did not receive legal counsel at the police hearing, where he claimed to have been forced to admit to the said offences. The judge concluded that Article 6 of the ECHR had been violated.
64 CPT, 18th General Report (2007-2008), para. 24.
65 ECHR (Second Section), judgement of 17 October 2006, (Okkali v. Turkey, No. 52067/99, paras 69 et seq.
66 ECHR (Grand Chamber), judgment of 27 November 2008, Salduz v. Turkey, No. 36391/02, para. 55.
67 Ibid, paras 56-62.
68 Recommendation 1121 (1990) on “The rights of children”, para. 6.
69 The campaign for a complaints mechanisms for the Convention of the Rights of the Child.
70 Article 13.
71 See report by the Court’s Registry, o.c., p. 5: “Children may thus apply to the Court even when they are not entitled, in domestic law, to bring legal proceedings”.
72 This also serves to convince the child not to start a procedure where there is in fact no legal ground or chance of succeeding.
73 By way of example, the Belgian legislation sometimes uses an age limit, and sometimes the level of discernment.
74 A too restrictive or purely technical approach on representation should be avoided. See I. Berro-Lefèvre, o.c., p. 71.
75 Article 33.
76 ECHR (Chamber), judgment of 22 October 1996, Stubbings and Others v. UK, Nos. 22083/93; 22095/93, para. 56. http://www.coe.int/t/dghl/standardsetting/childjustice/MJU-28(2007)INFO1%20e.pdf.
77 Para 56.
78 See ChildONEurope, Survey on the national systems of children’s legal representation, March 2008 (www.childoneurope.org). Several models are illustrated in this survey.
79 CETS No. 160.
80 Article 5, b.
81 General Comment No. 12 on the Right of the Child to be heard (CRC/C/GC/12, 1 July 2009), para. 19.
82 Ibid, para. 28-31.
83 General Comment No. 5 on General measures of implementation of the Convention of the Rights of the Child (Convention of the Rights of the Child/GC/2003), para. 12.
84 For more information, see CRIN Review: “Measuring maturity. Understanding children’s ‘evolving capacities”, 2009.
85 General Comment No. 12 on the Right of the Child to be heard (CRC/C/GC/12, 1 July 2009), para. 22.
86 UN Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime (ECOSOC Res 2005/20, 22 July 2005).
87 European Convention on the Exercise of Children's Rights, art. 3c.
88 The Committee on the Rights of the Child recommends that children are heard directly. General Comment No. 12 on the Right of the Child to be heard (CRC/C/GC/12, 1 July 2009), para. 35.
89 General Comment No. 12 on the Right of the Child to be heard (CRC/C/GC/12, 1 July 2009), para. 132: “The Committee urges states parties to avoid tokenistic approaches, which limit children’s expression of views, or which allow children to be heard -, but fail to give their views due weight. It emphasises that adult manipulation of children, placing children in situations where they are told what they can say, or exposing children to risk of harm through participation are not ethical practices and cannot be understood as implementing art. 12.”
90 General Comment No. 12 on the Right of the Child to be heard (CRC/C/GC/12, 1 July 2009), para. 133-134.
91 ECHR (Second Section), judgment of 22 June 2004, Pini and Others v. Romania, Nos. 78028/01 and 78030/01, para 157.
92 Ibid, para. 164.
93 (Chamber), judgment of 23 September 1994, Hokkanen v. Finland, No. 19823/92; para. 61.
94 Cf. Art 41 of the Rules of the ECtHR. This should be used more frequently according to I. Berro-Lefevre, o.c., p. 76.
95 Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, (CETS No. 201, Article 30, para. 3).
96 Council of Europe Committee of Ministers’ Recommendation Rec (87/20), para. 4.
97 See ECHR (Grand Chamber), judgment of 13 July 2000, Elsholz v. Germany, No. 25735/94, para. 49, and judgment of 8 July 2003, Sommerfeld v. Germany, No. 31871/96, para. 63.
98 ECHR (Chamber), judgment of 19 February 1998, Paulsen-Medalen and Svensson v. Sweden, No. 16817/90, para. 42.
99 ECHR (Chamber), judgment of 29 February 1988, Bouamar v. Belgium, No. 9106/80, para. 63.
100 See W. McCarney in Council of Europe, International justice for children, 2008, p. 119-127.
101 Article 35, 1, f.
102 Convention of the Rights of the Child, art. 40.3.
103 Council of Europe Committee of Ministers’ Recommendation R(87)20 on social reactions to juvenile delinquency, Proceedings against minors, paragraph 5.
104 UN Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime (ECOSOC Res 2005/20, 22 July 2005), para. XI, 30, d.: “Use child-sensitive procedures, including interview rooms designed for children, interdisciplinary services for child victims integrated in the same location, modified court environments that take child witnesses into consideration, recesses during a child’s testimony, hearings scheduled at times of day appropriate to the age and maturity of the child, an appropriate notification system to ensure the child goes to court only when necessary and other appropriate measures to facilitate the child’s testimony.” It should be borne in mind that these guidelines are about witnessing in general, and not only criminal proceedings.
105 Ibid, para. VI, 18.
106 ECHR (First Section), judgment of 2 July 2002, S.N. v. Sweden, No. 34209/96, para. 47.
107 Ibid, para. 53.
108 ECHR (Fourth Section), judgment of 19 June 2007, W.S. v. Poland, No. 21508/02, para. 61.
109 ECHR (Chamber), judgment of 29 February 1988, Bouamar v. Belgium, No. 9106/80, paras 52-53.
110 Article 42: “States parties undertake to make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike”.
111 See also Berro-Lefèvre, o.c., p. 74-75.