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FRA Conference on "Ensuring justice and protection for all children"

Speech by Ms Maud de Boer-Buquicchio, Deputy Secretary General of the Council of Europe

 

Brussels, 7-8 December 2010

Heading to the “Justice for children Decade”?

Ladies and gentlemen,

During the last two decades, and thanks to the UN Convention on the Rights of the Child, we have seen children’s rights slowly but surely penetrating the European legal systems and policies. We have moved from the idea of the child as an object to the child as a rights holder.

This long overdue evolution is now knocking on our courts’ doors. Indeed, children’s rights have little meaning if they cannot be guaranteed through our justice systems. The problem is that justice often seems to be blind to children’s specific needs and rights. Reaching the justice ivory tower looks like “mission impossible” for the most vulnerable of all citizens.

This is precisely why children’s access to justice at national and international level became one of the pillars of the Council of Europe strategy on the rights of the child 2009-2011. This is also why I am particular pleased to see the European Union and its Fundamental Rights Agency focusing on this topic.

Last month, the Council of Europe Guidelines on child-friendly justice were adopted by the Committee of Ministers. As it happens when justice is administered, the process leading to the adoption of this text was as important as the result. Let me therefore briefly refer to a few key considerations that have influenced this process.

First of all, these guidelines respond to a need

Justice cannot achieve its balance if the needs and rights of children aren’t put on the scales. The European Convention of human rights has an extensive case-law around its Article 6 (right to a fair trial); some of this case-law underlines the need for the justice system to take into account the specific needs of children. How does a child perceive concepts like “access to justice”, “fair trial”, “effective remedy”, “representation”, “compensation” or “undue delay”?

Many global and regional legal texts have identified the building blocks of a genuine child friendly justice system. From these standards emerge the applicable principles, as well as very concrete guidance about the way justice should treat child witnesses of crime, child victims of violence, children in conflict with the law or children participating in a family proceeding.

As an example, let me just mention the Council of Europe Convention on the protection of children against sexual exploitation and sexual abuse, which entered into force on 1 July 2010. The Convention requests countries to adapt their investigation and judicial proceedings to the rights and interests of the child victim. Through the new Council of Europe Campaign “One in Five” to stop sexual violence against children, we are already gathering examples of good practices on the implementation of this provision.

Unfortunately, the growing body of standards seems to be queuing in front of Europe’s courts’ doors, waiting for European justice systems to solve other outstanding issues, including the problem of lack of resources. But, as Martin Luther King rightly said, “justice denied anywhere, diminishes justice everywhere”. Justice for children is nothing we can keep waiting for.

The moment has come to organise all those building blocks in order to change the ivory tower into the home of children’s justice. The guidelines are the tool we need to make this happen.

Second, the guidelines followed a request

The guidelines on child friendly justice respond to the call launched in 2008 by the Ministers of Justice of our 47 member States who wanted to find in a single text guidance to adapt their judicial systems to the specific needs of children. For the first time, an international text looks at the many situations in which a child may come in contact with criminal, civil or administrative justice. The fact that this text was developed at the request of the Ministers of Justice and with their involvement makes us hope that it will be used in the best possible way.

Third, the guidelines contain an answer

The guidelines provide a definition of child friendly justice.

We define child-friendly justice as a system which guarantees the respect and the effective implementation of all children's rights at the highest attainable level, given due consideration to the child’s level of maturity and understanding and the circumstances of the case. It is, in particular, justice that is accessible, age appropriate, speedy, diligent, adapted to and focused on the needs and rights of the child. It respects the rights of the child including the rights to due process, to participate in and to understand the proceedings. It also respects private and family life as well as integrity and dignity.

This definition as well as the principles and the 83 guidelines contained in the text are the result of an unprecedented team work effort including several Council of Europe committees, several areas of expertise and consultations with civil society, ombudspersons for children and children themselves.

It was essential to hear the voice of children in the preparation of the guidelines. With the generous support of the Government of Finland, we organised a consultation of almost 4.000 children. This was the first time that the Council of Europe directly involved children and young people in the drafting of a legal instrument. Prominent partners such as UNICEF and the European Network of Ombudspersons for Children (ENOC) contributed greatly to facilitate this large-scale consultation.

Children’s messages have helped us to improve the guidelines so that they better address children’s concerns. This has been notably the case on issues such as the need to access to confidential counsel, the right to be heard and to receive information, the right to enjoy independent representation, as well as the right to access an independent and effective complaints mechanism.

Children interviewed 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. Children expressed the need to facilitate family involvement and support when faced with the justice system; they requested to be treated with respect and understanding so that they can trust the authorities and the institutions they represent. Children also complained about the lack of opportunities to be listened to.

We have taken all these messages into account but we also have critically looked at the way this consultation was organised. We shall use all lessons learnt in the context of the negotiations of our recommendations on the legal status of children and parental responsibilities and of the guidelines on child-friendly social services and child-friendly health care services.

The Child friendly justice guidelines are not only a declaration of principles, but a practical guide to the implementation of internationally agreed standards. Although they have the potential of bringing justice closer to all children, some of their solutions for vulnerable groups deserve being particularly underlined. This is the case of the provisions focusing on the needs of victims of domestic violence or trafficking, children with disabilities, separated and unaccompanied children as well as those seeking asylum.

Our guidelines insist on a multi-disciplinary approach, engaging legal, social-work, medical, and law enforcement professionals within a common assessment framework, to enable them to obtain a comprehensive understanding of the child. Confidentiality rules must therefore be strictly adhered to, allowing proceedings involving the child, whether judicial or non-judicial, to take place in camera wherever possible. This is considered vital to ensuring that children do not suffer from intimidation, reprisals or secondary victimisation.

Law enforcement officers and prosecutors should ensure that children are interviewed in surroundings adapted to their needs, as far as possible by trained professionals. Children should have the opportunity to give evidence in criminal cases without the presence of the alleged perpetrator. Following highly contentious proceedings, guidance, healthcare and support should be available to children and, where appropriate, their families. This could best be promoted by the setting up of child-friendly, multi-agency and interdisciplinary centres for child victims and witnesses, where children could be interviewed and could receive assistance by appropriately trained professionals.

Children with disabilities are also covered by these guidelines. As children with certain disabilities will not be able to effectively protect their rights on their own, member States should allow designated adults to act on their behalf. Under the section “dignity”, special attention should be paid to their personal situation, well-being and specific needs, and with full respect for their physical and psychological integrity. Disabled children may require special protection and assistance, and an assessment of their legal, psychological, social, emotional, physical and cognitive situation. In all proceedings, children should be treated with respect for their special needs, their maturity and level of understanding and bearing in mind any communication difficulties they may have.

And last, but not least: the guidelines set up a process

Ladies and Gentlemen,

The guidelines are not the end of the process, quite the opposite. First thing to do is to move away from the perception that child friendly justice is a luxury that we cannot afford.

Most of our guidelines could be implemented with very limited financial cost. Very often, it is a question of changing the mentality and attitude of professionals working in contact with children. This is one of the lessons learnt through the many good practices we have identified in different places in Europe. However, good practices have also shown that it is also worth investing in more ambitious approaches.

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, pediatricians, police and prosecutor’s office work together, primarily in the initial stages of a police or social services investigation.
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.
In Belgium and in the Netherlands, there are “children's rights shops”, which could refer them to a lawyer and provide with assistance in exercising their rights.
In England and Wales, 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, as one of the direct consequences of the European Court of Human Rights’ decisions.

There are good practices everywhere; nevertheless, much progress could be made in all countries, without exception. That is why these guidelines can be so helpful, as they can be used as a check list of measures to be taken.

The question of access to courts is very important: children should have the right to their own legal counsel and representation, in their own name, in proceedings where there is, or could be, a conflict of interest between the child and the parents or other involved parties. The European Convention on Human Rights gives “everyone” whose human rights are violated, the right to “an effective remedy before a national authority”. This wording clearly includes children. The result is that children can bring their cases to the ECHR, which they occasionally do, although they are often not entitled to bring legal proceedings under their domestic law.

Ladies and Gentlemen,

I wouldn’t be honest with you if I omitted to mention one frustration I have. I am very much concerned about the low minimum age of criminal responsibility in some countries. I very much hope that the principles behind these guidelines will inspire European legal and judicial systems so that we can soon replace prisons with solutions that really take into account the child’s best interest; because, I am convinced, this is also in the society’s best interest.

Our guidelines will be adequately presented during this Conference and I strongly encourage all our member States and other relevant stake-holders, including international organisations, to support their implementation as a matter of priority. I am very encouraged by the European Union wish to promote child friendly justice. I am convinced that the guidelines we put at your disposal are a unique tool to advance children’s rights in Europe and beyond.

As we leave behind the first decade of the XXI century, I think we are now ready to enter the “Justice for children decade”. Let’s do so with optimism and determination!

Thank you very much.