When sixteen-year-old Maria was gang-raped, she was not provided with legal assistance.
“She was attacked by eight boys and she was attacked by eight defence lawyers during two weeks,” said Renate Winter, Member of the Committee on the Rights of the Child. “She was not protected — she was not even assisted by the judge.”
Maria’s case was one of many illustrative examples presented at the United Nations Human Rights Council’s annual full-day Meeting on the Rights of the Child on 13 March 2014, which focused on international norms and standards on access to justice for children. The objective of the day of discussion was “to contribute to the realization of the right of the child to access justice, which is an essential prerequisite for the protection and promotion of all other human rights of children”.
Twenty-five years ago, on 20 November 1989, the United Nations General Assembly adopted the Convention on the Rights of the Child (CRC). The CRC belongs to the group of nine core international human rights treaties and includes a current total of 194 States Parties. The CRC’s content and adoption, and its near universal ratification, reflect the evolution in attitudes towards, and perceptions of, children and childhood. They reflect the evolution of children’s status from mere object of the rights of others (i.e., adults) and of charity, to full-fledged subjects of their own rights.
The CRC contains the international minimum standards as regards the human rights of children and the corresponding State obligations to respect and ensure these rights. In commemorating the CRC’s 25th anniversary, there is much to celebrate, from declining infant mortality to rising school enrolment and creating better opportunities for girls. There is also much that is not cause for celebration. Many children have fallen even further behind, and “old challenges have combined with new problems to deprive many children of their rights and the benefits of development.” This essay deals with an ‘old challenge’ – and unfortunately a major challenge still – in realizing children’s rights: ensuring access to justice for children.
Access to justice is defined as the ability to obtain a just and timely remedy for violations of rights as put forth in national and international norms and standards, including the CRC. In essence, it means that every person must be able to make claims and demand accountability when his or her rights are not respected. For children and adults alike, the right to access justice is a fundamental human right and, furthermore, an essential prerequisite for the protection and promotion of all other rights.
In exercising and enjoying the right to access justice, children are confronted with the same barriers as adults, such as lack of awareness about their rights; lack of information on how to demand redress in what are more often than not complex, remote, distrusted and even weak justice systems; inability to afford legal fees; and fear of stigma. However, the special and dependent status of children creates additional challenges for them, including problems relating to the lack of legal capacity to complain or initiate legal proceedings. Poor and marginalized children are at a particular disadvantage.
In many countries, justice systems are adult-oriented and do not cater to children’s needs and rights. They do not have specialized judges, prosecutors or investigators to handle cases involving children. They even victimize children for the second time and generate further harm. Girl victims of sexual violence are treated as perpetrators rather than as victims of crimes. Children accused of committing offences are held in pre-trial detention for months or longer, and have little access to legal aid. Children are held in police custody or in detention under charges like vagrancy, loitering or a ‘status offence’– conduct that would not be a crime if it was committed by an adult – instead of receiving appropriate care and protection. Despite these grave child rights violations, ensuring access to justice for children is rarely taken into account in strategies dealing with justice reforms and rule of law initiatives.
As the Committee on the Rights of the Child has aptly put it, “[f]or rights to have meaning, effective remedies must be available to redress violations.” Under the CRC, States Parties are obliged to ensure that there are effective, child-sensitive procedures available to children and their representatives. These procedures should include the provision of child-friendly information, advice, advocacy, access to independent complaints procedures, and access to the courts with necessary legal and other assistance. Where rights are found to have been breached, there should be appropriate reparation, including compensation and, where needed, measures to promote physical and psychological recovery, rehabilitation and reintegration.
The Committee on the Rights of the Child has emphasized that it is essential that domestic law sets out entitlements in sufficient detail to enable remedies for non-compliance to be effective, as regards civil and political rights as well as economic, social and cultural rights. Children should also be provided access to regional and international mechanisms, including the 2011 Optional Protocol to the Convention on the Rights of the Child on a communications procedure, which entered into force on 14 April 2014.
According to Anne Grandjean and other experts, ensuring access to justice for children requires efforts on at least two levels: building a child-sensitive justice system (‘supply side’); and, providing information and support to children in claiming their rights and obtaining redress, with special attention to the most excluded and the most difficult to reach children (‘demand side’).
In her groundbreaking report ‘No Rights Without Accountability: Promoting Access to Justice for Children’ of 2010, Grandjean asserts that there are innovative and promising initiatives on the demand side. Such initiatives are decentralized and located in areas where the poorest, most excluded children live, and they are owned and run by communities. They are multidisciplinary and involve a large number of partners, including civil society organizations. They respond to a particular need and fill a gap in a weak or failing formal justice system. They inform upstream policies and advocacy, and are part of a systematic approach.
“For every right, there is a remedy; where there is no remedy, there is no right.”
The low threshold, community-based ‘social-legal defence centres’ of the national sections of Defence for Children International (DCI) make up one example of such initiatives. Children and/or their families – including children in conflict with the law, and child victims of abuse, exploitation and violence – come to the centres to seek advice and assistance from the staff, which consists of lawyers and social workers. These professionals provide immediate advice and assistance, or refer children and their families to psychosocial, medical, legal or other services, as necessary. This approach involves bringing all stakeholders together and clear referral lines.
The centres of DCI-Sierra Leone, for example, are located at its community-based offices throughout the country. Though run by DCI-Sierra Leone, the centres are linked to community-based mechanisms like Child Welfare Committees, chiefs, courts, local hospitals and health centres, and police posts or Family Support Units of the Sierra Leone Police. These mechanisms form the referral network around the centres and make the work of the centres successful.
The centres of DCI-Palestine provide legal consultations to children and their families, and legal representation. These centres focus on three groups of children, namely: children in Israel’s military system (i.e., children arrested, detained and imprisoned for alleged offences under Israel’s military law of occupation of the West Bank and the Gaza Strip); children in conflict with the law (i.e., children alleged as, accused of, or recognized as having infringed the penal law); and child victims of abuse, exploitation and violence, falling under Palestinian jurisdiction.
On the ‘supply side’, in 2010, the Council of Europe adopted ‘Guidelines on child-friendly justice’, a non-binding practical tool to assist European states in establishing justice systems responding to the specific needs of children, with a view to ensuring children’s effective and adequate access to and treatment in justice. The guidelines are based on an integrated approach and apply to judicial and non-judicial proceedings in any sphere (civil, administrative or criminal). Under these guidelines, ‘child-friendly justice’ refers to justice systems that guarantee the respect and the effective implementation of all children’s rights. It is justice that is “accessible, age appropriate, speedy, diligent, adapted to and focused on the needs and rights of the child, respecting the rights of the child including the rights to due process, to participate in and to understand the proceedings, to respect for private and family life, and to integrity and dignity.”
‘For every right, there is a remedy; where there is no remedy, there is no right’ is a legal maxim in English and American jurisprudence. As the discussions on the Human Rights Council’s annual full-day Meeting on the Rights of the Child reminded us, the stark reality is that such remedies still do not exist for most of the world’s children. Following the words of Renate Winter, like Maria, they are not protected.