Our members, Mona Paré (University of Ottawa, Canada) and Mariëlle Bruning (Leiden University, the Netherlands), talk about their collection (edited with Thierry Moreau and Caroline Siffrein-Blanc), Children’s Access to Justice: A Critical Assessment (Intersentia, 2022).
Following the adoption of the Convention on the Rights of the Child in 1989, it is no longer possible to exclude children from addressing the justice issues that affect them. They are recognized as having the right to express themselves on matters that concern them, in all proceedings in which they have an interest. Thirty years on, how far have we come? Are the rights that are recognized effective? How are they implemented? Is justice child-friendly? Do children participate in the justice system? This book offers a critical review.
Children’s access to justice suffers from the ailments affecting access to justice for all, such as involving a lack of information, cost, the shortcomings of legal aid, the complexity of the steps and formalities, the slow pace of proceedings, etc. In addition, children encounter difficulties linked to their specificities. In thinking about justice, no priority is given to adapting it to them. Conceived for adults, applied by adults, the judicial system does not primarily offer justice adapted to the differences that distinguish children from adults.
The book is divided into four parts. The first is about children’s access to justice in child protection proceedings. The second focuses on children’s access to justice in judicial and non-judicial proceedings. The third discusses obstacles and avenues for solutions and the fourth offers critical reflections and conclusions that open the way to future research efforts and to action for the benefit of children.
A partnership was formed in 2017 to reflect on children’s access to justice with researchers from the University of Ottawa in Canada, the University of Leiden in the Netherlands, the Catholic University of Louvain in Belgium, and the Universities of Bordeaux and Aix-Marseille in France.
We decided to focus our research on children’s access to justice in child protection proceedings. This choice is explained in particular by the limited number of works in this field. While research has chiefly concentrated on children within the criminal justice system, every day many more children are confronted with child protection proceedings. The objective of our research was: to discover the concrete mechanisms used in each State to implement children’s right to be heard and to participate in the justice system, and to take an interest in the viewpoint and experience of the concerned parties, including professionals and children.
To this end, the teams undertook qualitative research, using interviews or questionnaires. We presented our findings during a conference organized by the Interdisciplinary Research Laboratory on the Rights of the Child of the University of Ottawa in 2021. This was also an opportunity to compare our research results with the work of other researchers from different countries on questions related to children’s access to and participation in the justice system, in other areas. This book reflects many topics that were discussed during the conference. Interestingly, this book is both published in English (Intersentia) and French (Dalloz).
As a legally binding international instrument, with almost universal ratification, the CRC is the benchmark against which a state’s treatment of its children is measured. The breadth of the Convention – which covers the full spectrum of rights including social, economic and cultural rights, and civil and political rights – means children’ rights must be protected, promoted and fulfilled in all aspects of their lives. The Convention confirms the status of children as rights holders and is clear that, notwithstanding the supporting role played by the child’s family, the responsibility to vindicate children’s rights rests with the state. Article 4 recognises that the state, as duty bearer, must take all appropriate measures to implement the Convention. Under Article 5, states recognise it is the responsibility of parents to provide the child with appropriate direction and guidance in the exercise of their rights in a manner consistent with their evolving capacities. While the Convention accepts the child may need parental support to exercise their rights, it is clear as children develop, they will gradually assume full responsibility to exercise and seek vindication of their rights.
Various provisions of the CRC recognise the procedural rights of children in legal proceedings. The Convention recognises that the child has a role in criminal proceedings (Art 40), in family law proceedings (Art 9) and in the review of alternative care (Art 25). More generally, Article 12 requires states parties to assure to the child who is capable of forming their own views the right to express those views freely in all matters affecting them. To this end, Article 12(2) requires that the child be ‘provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law’. Article 12(1) has had a significant influence on the attitude to children’s rights, signifying the increased visibility and influence of children in decision-making. Article 12(2) is equally important, however, reflecting the status of the child as a legal actor and a participant in legal proceedings affecting them. According to the Committee on the Rights of the Child (General Comment No.12), the child’s right to be heard applies ‘without limitation’ to all relevant administrative and judicial proceedings affecting the child and it applies equally to those initiated by the child – such as complaints against ill-treatment - as well as those initiated by others which affect the child, such as parental separation or adoption. The Committee recognises a child cannot be heard effectively where the environment is ‘intimidating, hostile, insensitive or inappropriate’ and recommends that proceedings must be ‘accessible and child-appropriate.’ It recommends that particular measures are taken to ensure that the environment in which proceedings take place is consistent with the child’s participation.
The Convention requires states to put in place the conditions to realise the child’s Article 12 rights. However, the requirements to safeguard the child’s procedural rights appear most commonly invoked in proceedings about the child, but to which the child may not be a party. In fewer situations, if any, is it envisaged children will have initiated these proceedings themselves. The Convention says little about the child’s entitlement to bring proceedings in their own name. Moreover, although the CRC provides some guidance on the legal capacity of children, it does not recognise the unequivocal right of the child to legal representation or assistance, at least not outside the context of the criminal justice system. It is hard to separate this conclusion from the fact that, although the Convention recognises the child’s procedural rights, unlike other international human rights treaties, it is silent on the fundamental right to an effective remedy.
Yet, according to Freeman (2007), ‘[r]ights without remedies are of symbolic importance, no more’. For this reason, the Committee on the Rights of the Child recognised early on that it is implicit in the Convention that, ‘for rights to have meaning, effective remedies must be available to redress violations’ (General Comment No.5). It goes on to note that children’s ‘special and dependent status creates real difficulties for them in pursuing remedies for breaches of their rights’, requiring states parties to ensure there are ‘effective, child-sensitive procedures available to children’ including ‘child-friendly information, advice, advocacy’. It specifically references the importance of the child having access to ‘independent complaints procedures and to the courts with necessary legal and other assistance.’ Where rights are found to have been breached, the Committee says, there should be appropriate reparation. It also regards it as ‘essential’ that domestic law set out entitlements in sufficient detail to enable remedies for non-compliance to be effective.