HUMAN RIGHTS COUNCIL DISCUSSES RIGHT OF THE CHILD TO ACCESS TO JUSTICE
Opens Annual Full-day Meeting on the Rights of the Child
13 March 2014
The Human Rights Council this morning opened its annual full-day meeting on the rights of the child dedicated to the international norms and standards on access to justice for children and child-sensitive justice. It held a panel discussion in which it discussed measures, procedures and mechanisms to guarantee access to justice for children and examined the necessary elements of a child-sensitive justice system.
In opening remarks, Flavia Pansieri, Deputy High Commissioner for Human Rights, said that access to justice for children was at the core of the protection of human rights of children and an essential prerequisite for the protection and promotion of all other human rights. Children often faced challenges in their efforts to seek justice because of complex justice systems, lack of awareness about their rights, reluctance to seek justice and because in many parts of the world it was culturally and socially unacceptable for children to lodge complaints and claim redress.
Mariangela Zappia, Head of the Permanent Delegation of the European Union to the United Nations Office at Geneva and moderator, said that children faced many barriers in accessing remedies for rights violations, and spoke about a survey which showed many children did not know how to access justice or felt that they were not heard or taken seriously.
Marie-Pierre Poirier, Regional Director for Central and Eastern Europe and the Commonwealth of the Independent States of United Nations Children Fund, said that many crimes against children were perpetrated by those closest to them and yet just a fraction of children had access to fair and effective justice systems. When accessible to all, justice systems were a powerful means to put an end to abuse and to restore entitlements such as social benefits.
Renate Winter, Committee on the Rights of the Child, said child-friendly justice meant it was age-sensitive, accessible, speedy, and diligent, adapted to the rights of the child and supported a child to participate in and understand the proceedings. Ms. Winter cited cases when children were not protected by a judge, including the case of a 16-year old girl attacked by eight boys and eight defence lawyers in a period of two weeks.
Tom Julius Beah, Head of Programmes, Defence for Children International in Sierra Leone, stressed that the right to legal representation and assistance was essential in cases of child abuse by their parents or in when a child infringed on a penal law. It was important for countries to incorporate good practice into law to ensure effective participation of children and families in legal proceedings to the advantage of the child.
Rosa Maria Ortiz, Vice-President and Rapporteur on the Rights of the Child, Inter-American Commission of Human Rights, said that the fundamental pillar on which democracy and rule of law rested was access to justice. She stressed that the guarantee of effective protection of rights of children were inclusive families and communities, firmly supported by States, and which ensured active involvement of children and young people.
Marta Santos Pais, Special Representative of the Secretary-General on Violence against Children, said that countries that had been affected by violence, instability, poor rule of law and weak law enforcement were also countries with difficulties in overcoming impunity, with children at a risk of poor health and social exclusion. For children, the justice system was not only very complex, it was a labyrinth and very frightening, but children had clear recommendations on how to improve the system: they wanted more knowledge and suggested the use of new technologies.
In the discussion speakers recognized the need to address the vulnerabilities of children in the justice system by building in specific protection measures that considered their young age and emotional immaturity. International law recognized the difference between juveniles and adults. States had the obligation to ensure equal access to justice for everyone, particularly for children with disabilities, street children, indigenous children and girls. Despite that, countries continued to violate juveniles’ rights when they entered the justice system and some even continued to sentence juveniles to death or life without parole. Access to justice for children could only be achieved if existing barriers such as fear and stigma were removed, if mechanisms suited children’s specific needs, level of maturity and age.
Speaking in the interactive dialogue were Yemen, on behalf of the Arab Group, Costa Rica, on behalf of the Community of Latin American and Caribbean States, Senegal, on behalf of the Group of Francophone Countries, European Union, Organization of Islamic Cooperation, Poland, Australia, Republic of Korea, Thailand, Chile, Belgium, Montenegro, Moldova, Qatar, Slovenia, Slovakia, Estonia, Algeria, Austria, Turkey, Syria, Italy, France, Paraguay, Cyprus, China, Kuwait, Pakistan and Sierra Leone.
The following national human rights institutions and non-governmental organizations also took the floor: Scottish Human Rights Commission, Plan International in a joint statement, Human Rights Advocates, National Human Rights Commission of Morocco, International Institute for Non-Aligned Studies, and Centre for Environmental and Management Studies.
At its midday meeting the Council will conclude the clustered interactive dialogue on children and armed conflict and violence against children which started yesterday. The annual meeting on the rights of the child will continue at 3 p.m. with a panel discussion on how to empower children to claim their rights and seek redress. More details here.
The Council has before it the report of the United Nations High Commissioner for Human Rights on access to justice for children (A/HRC/25/35).
The Council has before it an addendum to the report of the United Nations High Commissioner for Human Rights on access to justice for children containing information received from Member States after the deadline for submission (A/HRC/25/35/Add.1).
Opening Statement by Deputy High Commissioner for Human Rights
FLAVIA PANSIERI, United Nations Deputy High Commissioner for Human Rights, said today’s discussion focused access to justice for children, a subject that was at the core of the protection of human rights of children. Access to justice was not only a fundamental right in itself, it was also an essential prerequisite for the protection and promotion of all other human rights. Access to justice implied that children could obtain fair and timely remedies for violations of their rights. In order to enjoy access to justice, children must also enjoy other fundamental rights provided in international instruments, including the rights to a fair trial and access to information. Children must also enjoy the right to be heard and to be protected from discrimination on any grounds. In practice, despite the protection afforded by a comprehensive legal framework, children often faced challenges in their efforts to seek justice. Justice systems were often very complex and difficult to understand and children were frequently unaware of their rights and lacked information about where to go and whom to call for advice and assistance. Children may be reluctant to seek justice because they feared harassment, further stigmatization, abandonment, or reprisals against them or their families. In many parts of the world, it was also culturally and socially unacceptable for children to lodge complaints and claim redress.
Children often had no legal capacity to act without their parents or other representatives. The situation became particularly problematic if there was a conflict of interest between the child and his or her parents or if the perpetrator of a specific violation came from the immediate environment of the child. While those difficulties were experienced by many children, some were faced with additional obstacles in accessing justice, including multiple forms of stigmatization and discrimination. It was of crucial importance that those challenges were confronted and overcome. Children needed to be empowered to claim their rights. It must be ensured that national legal systems had the capacity to accept and address complaints from, or on behalf of, children. A child-sensitive justice system was one that understood and respected the rights of children and their unique vulnerabilities and included independent, safe, effective and easily accessible complaint mechanisms for children. The views of children, even those of the youngest, had to be given due consideration. Furthermore, children had to be protected from manipulation, harassment, reprisals or intimidation. The Committee on the Rights of the Child was currently working on a child-friendly complaint form, which would enable children to address their communications to the Committee directly.
Opening Statements by Panellists
MARIANGELA ZAPPIA, Head of the Permanent Delegation of the European Union to the United Nations and other international organizations in Geneva, and moderator, said that it was clear that for right to have meaning, effective remedies had to be available to address violations, and that was true of violations of the rights of the child. Children faced many barriers in accessing remedies for rights violations. It was timely that the Human Rights Council held a discussion on how to improve access to justice for children as in 2013, Child Rights Connect conducted a survey in which it asked children about the justice system. Many children did not know how to access justice or felt that they were not heard or taken seriously. Some children indicated that they would prefer to talk to non-family members, for several reasons. Many also felt that engaging with the justice system would likely expose their families to danger. Children said they wanted practical support, guidance and information and if need be, an appropriate reference person such as a teacher, social workers, psychologist, parent or carer. There was room for improvement when it came to protecting the rights of children.
MARIE-PIERRE POIRIER, Regional Director for Central and Eastern Europe and the Commonwealth of the Independent States, United Nations Children’s Fund (UNICEF), said hundreds of children across the globe had their rights violated, and many crimes were perpetrated by those closest to them, yet just a fraction of children had access to fair and effective justice systems that were able to make decisions in their best interests. Many children were separated from their parents and very few were able to challenge such decisions in court. Equitable access to justice meant ensuring that all children were served and protected by justice systems. Access to justice was a necessary aspect of child rights realization, although not the only measure of implementation. It was a challenge for all children, especially for the most vulnerable such as girls, children with disabilities, minorities and those living in poverty and exclusion.
When accessible to all, justice systems were a powerful means to end abuse and restore entitlements such as social benefits. Institutional improvements were noted: court settings and police stations were adapted and made less intimidating, police officers and judges trained to communicate sensitively, legal and para-legal support increasingly provided to provide advice or refer to legal, medical or other services. UNICEF in the Europe and Central Asia region had initiated a research study due next June, whose preliminary findings were that children faced the same barriers as adults in access to justice such as fees, distrust in system, or stigma, but also obstacles related to their status; social norms often made it unacceptable and unconceivable to children to launch a complaint without parental consent.
RENATE WINTER, United Nations Committee on the Rights of the Child, said child-friendly justice meant it was age-sensitive, accessible, speedy, diligent, adapted to the rights of the child and supported a child to participate in and understand the proceedings. It included not only penal, but also civil and social assistance proceedings, covering such diverse cases as asylum-seekers, migrant children, rape, abuse and divorce. Ms. Winter cited cases when children were not protected by a judge, had no child-sensitive assistance, were unrightfully punished or court proceedings and the people involved were not explained. One example involved a 16-year old girl being attacked by eight boys and eight defence lawyers during a period of two weeks.
Asylum-seeking children in many countries were assisted by State-appointed persons who knew about the case but not the child, without child-appropriate language, or information about the proceedings given to the child, support mechanisms or legal remedies like for adults. Children in remote places only had access to traditional justice, which did not reflect the development of justice; child rights were unknown in most traditional, paternalistic societies. Ms. Winter hoped the next International Congress on Juvenile Justice to be held in January 2015 in Geneva would provide assistance and an opportunity to implement what should have been already implemented.
TOM JULIUS BEAH, Head of Programmes, Defence for Children International, Sierra Leone, said that the right to legal representation and assistance was a fundamental human right for adults and children. Those rights were also essential for children in non-criminal matters. The level of access to legal representation varied from country to country and a challenge was that legal representation in criminal matters was dependant on the legal status of the child. In developing countries either laws did not provide for legal representation or there were no mechanisms ensuring free legal services for children. Legal representation for children was essential in cases of child abuse by their parents or when a child had committed a criminal act. As a result of difficult access to legal representation and therefore to justice, children suffered consequences such as prolonged detention.
One way to guarantee protection for children was to ensure free, consistent and accountable legal representation for children, particularly abused and neglected children and children who had infringed on a penal law. It was important for countries with good practices to incorporate practice into law to ensure that there were procedures and measures for empowering children and families to effectively participate in legal proceedings, to the advantage of the child.
ROSA MARIA ORTIZ, Vice-President and Rapporteur on the Rights of the Child, Inter-American Commission of Human Rights, said that fundamental pillar on which democracy and rule of law rested was access to justice, including for boys and girls. Petitions including children represented about ten per cent of the Commission’s annual caseload and most related to the difficulty in accessing justice and that the “per saltum rule” applied to them, ensuring that they jumped the waiting list and were considered first. Everything that was done must ensure accessibility, must be child-sensitive and must be resolved.
Children must have free legal and specially trained assistance so that they were adequately represented and that their right to be heard was ensured. When dealing with urgent cases in which damage caused by waiting could be irreversible, the Commission could ask States to protect rights of person at risk with urgent measures. The Commission had also drafted a thematic report to establish new standards, for example on corporal punishment, juvenile justice and on the right of the child to a family. In closing, Ms. Ortiz stressed that it was the inclusive families and communities which were firmly supported by States and which ensured active involvement of children and young people that were the guarantees of effective protection of their rights.
MARTA SANTOS PAIS, Special Representative of the Secretary-General on Violence against Children, said that universal access to justice was at the heart of the human rights agenda and was fundamental for good governance and sustainable development. Counties that had been affected by violence and instability, poor rule of law and weak law enforcement were also countries that found it difficult to overcome impunity, had children at risk of poor health and social exclusion. For children, the justice system was not only very complex; it was a labyrinth and very frightening. Many children did not even have legal identity. In most countries, the legislation did not allow children with disabilities to swear an oath, sign a document or bring testimony to a case that affected them.
What was found to be very important was that children had clear recommendations on how to improve the system. They wanted more knowledge and suggested the use of new technologies. Access to justice required a system that was well equipped, that had the capacity and resources to protect the rights of the child, but also a system which children understood and felt close to. States needed to have established mechanisms for specialized legal aid for children and professional codes of conduct for engagement with children. There was impatience over the lack of progress but there was still hope. We knew what was needed, we just needed to do it well and fast enough for children of the current generation to benefit, she concluded.
Yemen, speaking on behalf of the Arab Group, said legislation should be sensitive to the special needs of children and consistent with their particular status, giving the example of the Charter of the Arab Children, which came before the international Convention on the Rights of a Child. Costa Rica, speaking on behalf of the Community of Latin American and Caribbean States (CELAC), said access to justice could only be achieved if existing barriers such as fear and stigma were overcome. Children needed mechanism that protected them, were suited to their specific needs and whether they were victims or perpetrators and avoided them being made victims twice over. Senegal, speaking on behalf of the International Federation of La Francophonie, highlighted the objectives Francophone States set in Bamako in 2000: to strengthen the capacities of associations and specialized structures to ensure participation of children and youth in democratic life and inform them of their rights, and to promote ratification of instruments including the third Optional Protocol to the Convention on the Rights of a Child.
European Union said it was pleased to present together with the Latin American and Caribbean Group (GRULAC) a resolution on access to justice for children. It asked panellists to elaborate on ways for children to be heard and for recommendations to integrate access to justice for children in justice sector reforms, rule of law initiatives and national planning. Organization of Islamic Cooperation said it was our responsibility as adults to protect all rights of a child. It reaffirmed that in Islam there was a devotion to promote the rights of children, every child had a right to express its opinion on all matters concerning it, and States should ensure children had legal and humanitarian assistance as necessary. Poland said access to justice for children had rarely been addressed holistically in the international forum. Its Ministry of Justice had joined the coalition of child-friendly interrogation. It asked panellists what measures they would recommend to ensure children’s access to information and how to integrate access to justice in the post 2015 development agenda.
Australia recognized the need to address the particular vulnerabilities of children in the justice system, as well as the importance of a child sensitive justice system. Providing children with knowledge, skills and information was an important element of increasing children’s access to justice. Republic of Korea shared the conclusion of the High Commissioner’s report that stated that ensuring access to justice for children was an essential prerequisite for the protection and promotion of all other human rights of children. It spoke about its recent legislation on child abuse and child welfare. Thailand said that it was in the process of enhancing its domestic complaint mechanism, procedures and remedies, to specifically provide access to justice for children and respond to their complaints, or those of their representatives. Training was provided to children and youth councils, multi-disciplinary teams, parents, teachers and all persons working with or for children.
Montenegro said a major achievement had been the adoption of legislation in 2011 to conform Montenegrin practices with international standards in areas related respect for children’s rights, including the treatment of juveniles in the justice system with due care, assistance for children victims and witnesses of crimes, the prohibition of discrimination for children, and consideration of the best interest of the child. Belgium said a priority of the Belgian presidency of the Council of Europe at the end of this year would be children’s rights, specifically Article 3 of the Convention on the Rights of the Child, concerning the best interest of the child in order to commemorate the twenty-fifth anniversary of the Convention. Chile said boys and girls could access justice if they were not empowered. They had to be recognized as rights-holders. National systems had to be strengthening and that required an international effort. What challenges and advantages did new technologies offer regarding access to justice for children?
Scottish Human Rights Commission said that Scotland had a unique system for addressing the needs of children that committed offences and placed the best interest of the child at the centre of decision-making. However, it also had one of the lowest ages for criminal responsibility in the world, at eight years of age and children still faced barriers in access to legal representation. Plan International, speaking in a joint statement, noted that the Optional Protocol to the Convention on the rights of the child, on a communications procedure, had been ratified by ten States and would enter into force in April this year. It allowed victims to seek justice internationally when they could not obtain it nationally, and urged States to ratify it without delay. Human Rights Advocates said that international law recognized the difference between juveniles and adults. Despite that, countries continued to violate juveniles’ rights when they entered the justice system. Some countries continued to sentence juveniles to the death sentence or life without parole. What procedures were available for redress given those violations?
Response to questions by Panellists
MARTA SANTOS PAIS, Special Representative of the Secretary-General on Violence against Children, encouraged States to actively participate in defining the post-2015 global development agenda, to be vocal child advocates in that process and so build child-sensitive juvenile justice for all children. Concerning the identification of cases of child abuse, she said that the contribution of schools and health centres should not be underestimated and offered her assistance to all States which were interested in putting that system in place.
ROSA MARIA ORTIZ, Vice-President and Rapporteur on the Rights of the Child, Inter-American Commission of Human Rights, said that there was concrete progress in the development of the legal systems and in ensuring access to justice for children and families in many Latin American countries. Strengthening families and communities would prevent problems from arising and assist in protecting children, stressed Ms. Ortiz and highlighted the use of new technologies in ensuring the enjoyment of the right of the child to be heard.
TOM JULIUS BEAH, Head of Programmes, Defence for Children International in Sierra Leone, said it was important to have advocates who would speak for children and that States must ensure access to seek redress when rights of children were violated. Mr. Beah invited all States to ratify the third Optional Protocol to the Convention on the Rights of the Child and said that no matter how much children could enjoy their rights, it did not matter if they did not have access to effective redress.
RENATE WINTER, United Nations Committee on the Rights of the Child, responded to a question from Poland saying that access to justice for children would be facilitated by mandatory information-sharing of stakeholders such as police, by public information campaign based on inclusion in school curricula and regular visits to schools by police and judges. She also noted financial and logistical obstacles. In response to the European Union, she proposed adoption of a law that voided a decision if it was taken without hearing from the child concerned, and the creation of an inter-ministerial committee where stakeholders could bring complaints or suggestions. Responding to Community of Latin American and Caribbean States, she deplored administrative detention of children, and said guest families or boarding schools were better alternatives, as children would not run away if they were cared for.
MARIE-PIERRE POIRIER, Regional Director for Central and Eastern Europe and the Commonwealth of the Independent States, United Nations Children’s Fund (UNICEF), said that to integrate access to justice in judicial processes, from the beginning the participation of child activists and children themselves was considerations as well measures such as child-friendly court chambers. Information on access to justice needed to be in child-friendly languages, and could be disseminated in schools where it could be part of wider education package on rights. For children out of school, actors that were most in contact with vulnerable children, such in social assistance centres should be involved. Ms. Poirier stressed the importance of the role of the family, where children went for trusted information, so information directed at children should be accompanied by suitable information for the parents.
Turkey said safeguarding and enhancing the wellbeing of children was one of humanity’s most profound responsibilities. Turkey endeavoured to do the utmost to continue to promote the rights of children and to improve their living conditions. The newly established Ombudsman institution was entrusted with applications concerning the rights of women, children and the disabled. Austria said States had an obligation to make the justice system accessible for all children. Some children faced particular barriers in accessing justice including barriers to non-judicial complaint systems which were often the first steps for accessing redress. Qatar said that conventions such as the Convention on the Rights of the Child stressed the need for methodology to avoid judging and trying children, without resorting to courts. Qatar spoke about its 1994 law which instituted a specialized tribunal with specialized judges for crimes committed by children. Moldova said that ensuring that child-sensitive mechanisms to detention were available in practice, including free legal assistance and representation of children, was of the utmost importance. Reform of its juvenile justice system had provided tangible results, through coherent national policies and assistance from development partners.
Slovenia said it had increased its efforts to lay the normative framework for improved access to justice for children. What were the views on the issue of participation of children in the communication procedure under the third Optional Protocol to the Convention? How could coordination between United Nations bodies on the issue of access to justice for children be improved? Slovakia said that recognizing that effective, independent and accessible complain mechanism significantly contributed to the full respect and enjoyment of the rights of the children, including the access to justice. It asked about the expected impact of the third Optional Protocol in terms of addressing violations of the rights of the child more effectively at national level? Estonia said that it found its children’s Ombudsman institution of great value, as it stood firmly and comprehensively for children’s rights in all aspects. Could panellists elaborate on how civil society and local communities could be more and better involved in making access to justice easier and more child-friendly? Algeria shared the finding that access to justice for children had to strengthen training, involvement of children and take into account their vulnerabilities. Children whose rights had been violated in Algeria may sue the perpetrator by submitting a complaint to the prosecutor or judge of the Court of Minors.
France drew attention to access to justice for children affected by armed conflict. Measures must be taken to protect the rights and best interest of child and to ensure that justice was delivered. Cyprus said that children were vulnerable due to young age and emotional immaturity and that was why they needed specific and enhanced protection in justice systems. Paraguay reiterated the obligation of States to ensure equal access to justice for everyone, particularly for children with disabilities, street children, indigenous children and girls. Syria spoke about its juvenile justice system and said young Syrians could complain through their families. Minors under the age of 18 who committed an offence were tried in a specialized court, and only subject to rehabilitation measures for a maximum of six months.
Italy said its National Authority for Children and Adolescents was created in 2011. It referred to its systems access to justice for children and noted that criminal responsibility only began from the age of 14 years. China said participation of children in legal proceedings was an important principle and it was currently conducting a study in exercise of rights of children who were abused by legal guardians. Kuwait said it paid particular attention to the needs of children in terms of legislation, so various articles of its constitution focused on the situation of family. Pakistan said it had established child complaint offices on federal and provincial levels which addressed concerns and complaints regarding child protection in schools, residential institutions and public services. Sierra Leone, commended the efforts of the international community designed to improve the lives, welfare and protection of children, whether related to the right to health, rights of a child in armed conflict or forced child marriage, and drew attention to the barriers restricting children’s access to justice and right to an effective remedy.
National Human Rights Commission of Morocco said that it was long interested in the situation of children in conflict with the law and it had made recommendations to the Government to provide adequate resources for the child-sensitive justice. International Institute for Non-Aligned Studies said that education was essential for the enjoyment of rights and that universality of education must be ensured by States; merely attending schools was not enough, children must have trained and intelligent teachers, adequate textbooks and curricula that taught tolerance. Centre for Environmental and Management Studies said that the right to education must be accessible to everyone and educational instruction must be free so that all children could enjoy it.
MARIE-PIERRE POIRIER, Regional Director for Central and Eastern Europe and the Commonwealth of the Independent States, United Nations Children’s Fund (UNICEF), said the coordination of access to justice for children in the United Nations was by the Rule of Law Coordination and Resource Group. The United Nations Secretary-General had issued a guidance note requesting all the national institutions to implement corresponding legislation. At the national level it was discussed within the established United Nations coordination mechanisms. There was still a long way to go to guarantee access to justice to all children, but it was encouraging to see many States supported protection of children in their criminal, civil and administrative processes.
RENATE WINTER, United Nations Committee on the Rights of the Child, responded to a question on the impact of the third Optional Protocol to the Convention on the Rights of the Child and said it was thought to be a medium to long term one. Coordination between different United Nations bodies was indeed very poor. Children could participate in the third Optional Protocol, on a communications procedure, for example through drawings, videos, or other media to circumvent the use of official forms. The Committee did not have very many possibilities regarding available procedures for redress but one could be of use, which was writing recommendations on violations and publishing them on the internet. Laws had to be created to grant children their rights, set up mechanism to protect them, and to implement all.
TOM JULIUS BEAH, Head of Programmes, Defence for Children International-Sierra Leone, in response to a question on implementation of legal procedures by legal professionals, said they should be involved in the development of tools and implementation of the procedures. On recognizing the significant challenges faced by children in accessing justice, he said a significant measure could be to ensure that there was a legal advocate who was relatively informed and willing to ensure that the rights of children were protected and if violated, that legal redress was made.
ROSA MARIA ORTIZ, Rapporteur on the Rights of the Child, Inter-American Commission of Human Rights, referred to the concern mentioned by some about to what extent society backed the reform that had been the outcome of the Convention and its protocols. It was clear that change so far had not been enough and there was still much to do. However if society did not support the reforms we would be faced with very difficult situations, backlashes and back-stepping. There was not enough support by the media and there were also issues such as the security of citizens and violence that were not appropriately shown. The recommendations of the Committee on the Rights of the Child had to be heeded and plans of action to implement those had to be looked at.
MARTA SANTOS PAIS, Special Representative of the Secretary-General on Violence against Children, said on the third Optional Protocol that the main impact was not necessarily the number of complaints that would be brought to it. The real difference had to be at the national level and that would not be achieved if children were not aware of the Protocol. A child-friendly version of the Protocol was being drafted. Promoting discussions in schools and good awareness-raising campaigns were fundamental. The indicator of progress had to be the most vulnerable children. It was important to not forget that justice had to remain present even after it had been seized, to fill the children with new hope in life.
For use of the information media; not an official record