Towards a child-friendly justice

Key points

• For the Council of Europe, protecting children and promoting their rights to enjoy effective and adequate access to justice has been a priority for many years.

• The European Court of Human Rights has constantly held that justice must not only be done but it must also be seen to be done in the eyes of children.

• While some progress has been made over the years towards child-friendly justice, much remains to be done: new legal instruments are increasingly being put in place but legal lacunae remain and the provisions of these texts are often not put into practice.

• The Council of Europe is preparing guidelines on child-friendly justice as a practical measure to assist European governments in adapting their judicial systems to the specific needs of children. The guidelines will be available in 2010.

Summary

At the 2005 Warsaw Summit, the Council of Europe Heads of State and Government renewed their commitment towards children’s rights and asked the Organisation to strengthen its work in this field. This included the co-ordination of all its activities concerning the rights of the child, mainstreaming children’s rights in all Council of Europe policies and launching the Programme “Building a Europe for and with children”.

Children come into contact with justice in many different areas, for instance in family matters such as divorce or adoption, in administrative justice for nationality or immigration issues and in criminal justice as victims, witnesses or perpetrators of crimes. This contact takes place in many different ways, in and outside the courtroom.

When faced with the judicial system, children are all too often thrown into an intimidating adult world which they cannot understand. Adapting justice to their needs is indeed a challenge.

Although some international and European standards grant a place and a voice to the child in justice, there are often considerable difficulties in implementing these standards. The future guidelines on child-friendly justice will seek to remedy these problems by setting out basic rules for European states to follow.

Within the Council of Europe, the Committee of Experts on family law has been working for over 40 years and has prepared an important number of legal instruments concerning family law in particular relating to the protection of children. Its latest achievement is the revised European Convention on the Adoption of Children which is an up-to–date set of rules aiming to ensure that adoptions are carried out in the best possible conditions, and that children are brought up in a harmonious and favourable family environment.

Questions and Answers

What is the basis for the Council of Europe’s work on child-friendly justice?

The Action Plan adopted at the Warsaw Summit of Heads of State and Government (2005) launched the programme “Building a Europe for and with children”. This programme has been providing guidelines to improve standards for the treatment of children generally.

Many conferences have been held since then in order to prepare the ground for comprehensive guidelines on child-friendly justice.

For instance, the 2007 Conference of European Ministers of Justice held in Spain adopted a resolution on child-friendly justice. This resolution recalls that children are especially vulnerable and that it is necessary to ensure respect for their rights and attention to their specific needs and concerns in all aspects of the justice system. It also calls on states to become parties to the European Convention on the Exercise of Children’s Rights, the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, the Convention against Trafficking in Human Beings and the Convention on Cybercrime.

The role of children as victims, witnesses and perpetrators of crime was also discussed at a conference held in Stockholm in September 2008 which set out a number of principles, including the following:

-          children should be summoned to appear in court only rarely and, whenever possible, information should be collected by other means;

-          when children do participate in the proceedings, such proceedings should be adapted to meet their needs;

-          language appropriate to the age of the child should be used;

-          the length of hearings should be curtailed;

-          the children’s right to have their private lives respected must be upheld;

-          the professions concerned must encourage the use of forms of alternative dispute resolution;

-          arrangements for somebody to accompany and assist the child from the beginning to the end of proceedings should be made.

What does the European Court of Human Rights say?

In two judgments of 16 December 1999, the Court concluded that “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.”

These Court rulings changed the way children are tried in England and Wales. In 2000 new arrangements were set out to make “adult” courts more “child-friendly” in particular when children are accused of serious crimes. For instance, children are not kept in the dock, public and media attendance is restricted and judges do not wear wigs.

What is the aim of the new guidelines?

Children are very often invisible in our judicial system and have no voice. In order to rectify this situation, the guidelines will build on the existing international, European and national standards. They will give a place and a voice of the child in all circumstances where he or she may be, for whatever reason, likely to be brought into contact with civil, administrative or criminal justice systems. Furthermore, the guidelines will promote the rights of information, representation and participation of children in judicial as well as extrajudicial procedures and will deal with the place and the voice of the child before as well as during procedures and after judicial decisions. As a practical tool, the guidelines will present good practices and propose practical solutions to remedy any legal gaps.

In developing a set of guiding principles, the following must be considered:

-          respecting the rights set out in the European Convention on Human Rights and the case-law of the Court;

-          respecting the best interests of the child, having regard for the child’s circumstances and needs;

-          respecting the rules for procedural fairness with due regard to the rights of the defendant;

-          the right to participate in proceedings having regard for the competence and maturity of the child;

-          the need for equality of treatment and avoidance of discrimination (no distinction between “deserving” and “not deserving” children);

-          the need to avoid delays in all proceedings involving children;

-          the need for appropriate research and development.

Contact

Estelle Steiner, Press officer

Tél. +33 (0)3 88 41 33 35

Mobile +33 (0)6 08 46 01 57

[email protected]

Updated: September 2009