The aim is to assist the 47 Member States of the Council of Europe in ensuring that children have adequate access to justice, and to protect children who, for whatever reason and in whatever capacity, come into contact with the civil, administrative or criminal justice authorities. The recommendation will not be legally binding on the Member States, but it has enabled its authors to set out ambitious targets in a controversial area.
The Guidelines are part of a Council of Europe strategy entitled “Building a Europe for and with Children”. The Guidelines are at https://wcd.coe.int/ViewDoc.jsp?Ref=PR865(2010&Language=lanEnglish&Ver=original&Site=COE&BackColorInternet=F5CA75&BackColorIntranet=F5CA75&BackColorLogged=A9BACE.
A child-friendly version will be available soon.
Listening to children
The expert group responsible for drafting these Guidelines decided to conduct a Europe-wide consultation with children to incorporate their views into the Guidelines and it means that the drafting-process, as well as the content, is now child-friendly. It is the first time that a consultation has been carried out on such a scale.
With the support of the Finnish Government, and that of partner organisations, 3,700 replies to the questionnaire were received from children in 25 countries. The questionnaires were mainly collected by non-government organisations (“NGOs”), who also used methods such as group exercises, interviews and the use of artwork to collect the information. The number of questionnaires received from each country varied and the results were never intended to be statistical or scientific; but the diversity of the methods used to obtain the information has added to the richness of the results. The results of the consultation are presented in a report, Listening to Children about Justice: Report of the Council of Europe Consultation with Children on Child-Friendly Justice (“the Report”), by Dr Ursula Kilkelly from University College Cork (and available at www.coe.int/t/dghl/standardsetting/childjustice/default_en.asp).
In the UK, children were consulted through different methods. Many responses were received through the website of CRAE (Children’s Rights Alliance for England), but these were from children of different nationalities. Interviews with children were also carried out by CRAE and by the Howard League for Penal Reform. In addition to this, seven responses were collected in Northern Ireland.
Certain children, who were interviewed directly during the consultation, felt that the criminal justice system was not adapted to their age. Many complained about a failure to explain the sentence or court decision, and some felt that their lawyer had not been helpful in this regard. The children felt that they were not listened to properly (see further below). This was a particular issue among young women who had been in contact with the English courts, and who were interviewed by CRAE and the Howard League for Penal Reform.
The findings of the consultation were crucial in ensuring that the Guidelines reflect a form of justice that respects children and considers issues from their perspective.
In the preamble to the Guidelines major international instruments concerning the protection of children are recalled. Part II of the Guidelines then sets out general principles governing children’s access to information concerning their rights. Emphasis is placed on the protection of the best interests of the child in all decisions affecting them. It is also recalled that children are protected from discrimination, and from all inhuman and degrading treatment.
Part III of the Guidelines moves on to consider child-friendly justice before, during and after judicial proceedings. The Guidelines recall that a child and its parents should have access to advice and information at all stages of the judicial process, starting from their first contact with the police, social services, healthcare professionals or other official persons. Access to a complaint mechanism should always be available, and the information should be adapted to the child’s age and special needs. The privacy and safety of children should be protected and all professionals coming into contact with children should receive adequate training. A multi-disciplinary approach is encouraged, whereby professionals in different fields work closely together with the child, and establish a “common assessment framework” in proceedings involving children. A child’s privacy should none the less be protected during the exchange of information between the different services.
The Guidelines then address the issue of deprivation of liberty, which should be a last resort; children should only be detained with adults if there are exceptional reasons justifying this, and it is in the best interests of the child. The Guidelines do not fix an age of criminal responsibility, but state that it should not be “too low”, and should be determined by law. It is maybe a little disappointing that the Guidelines do not fix an age. This would have been of particular importance for England and Wales, which now have the lowest age of criminal responsibility in Europe.
Concerning child-friendly justice during the judicial proceedings, the Guidelines specify that children should have access to legal aid and adequate, separate, legal representation. Children should be able to familiarise themselves with the layout of the court-room before the hearing.
The Guidelines specify that the language used during proceedings should be adapted to the child’s level of understanding. This refers to situations such as the cross-examination of the child witness in R v Barker  EWCA Crim 4, and other recent English cases where the young witness clearly struggled to understand some of the questions put to them, in particular leading questions. The Guidelines recognise the issues surrounding audio-visual statements and the defendant’s right to cross-examine witnesses and put forward their case. The Guidelines state that audio-visual statements should be encouraged, whilst respecting the right of other parties to contest their contents. Contact between a child-witness and the perpetrator should be avoided unless the child requests it.
After the judicial proceedings, the decision should be adequately explained to the child. Executions of judgments by force, in family law cases, should only take place in exceptional circumstances. Sanctions against children must always be constructive and the right to education and rehabilitation should be guaranteed.
Coming into contact with the courts can be a traumatising experience for anyone; for a child it can be devastating. The Guidelines seek to ensure that this process is as painless as possible. What effect the recommendation will have on domestic law and practice is difficult to evaluate at this stage. After signature, the Committee of Ministers will be able to consult Member States on what implementation measures have been taken. It is hoped that substantial changes will take place in the UK and elsewhere concerning the treatment of children within the courts, in order to ensure that children are better informed of their rights, and that their best interests are protected.
Elizabeth Cleaver, former intern at the Council of Europe, and Peter Duffy Human Rights scholar, Lincoln’s Inn
Listening to children about justice
An important point about the scope of this study is that children have a clear but very broad view of what justice means, writes Dr Ursula Kilkelly.
Their sense of justice is about being heard and listened to and this reaches across a wide range of areas including formal justice systems (family and criminal law matters) as well as a whole range of areas where decisions are made that affect them – such as in immigration, health care, education and treatment by the police to give just some examples.
Two additional themes arise through the research. The first is the importance to children of family. As the report highlights, at every opportunity where children were given a choice – who they wanted to give them information, who they wanted to explain decisions, who they wanted to support them through the justice process – they chose family (parents, siblings and friends). This is a particularly challenging issue because justice systems do not always include family in a positive way, and it also raises particular concerns with regard to children who do not enjoy family support.
A second important finding is that children want to talk directly to those who take decisions about them. So, although they want to be supported when going through the justice system and want family involved, they do not always want their views moderated by a third party and want to be able to speak directly to the decision-maker.
Dr Ursula Kilkelly, Senior Lecturer at the Faculty of Law, University College Cork, prepared the Listening to Children About Justice Report. The Report is also available in child-friendly form on the Council’s website (www.coe.int/childjustice).