BACKGROUND
 Introduction
  Group of Specialists (CJ-S-CH)
 Youth Consultation

GUIDELINES
 Introduction to the Guidelines
  Text of the Guidelines
 Related texts and documents

ACTIVITIES
 Events

RESOURCES
  Databases, Materials and Links

 

PUBLICATIONS
 

 

It is true that the child may participate in court proceedings in roles other to that of “party”, for example as the injured party or victim, as witness or as perpetrator. In these instances, the authority frequently determines the parameters for inclusion and provides access to justice in the sense that the child is subsumed into the procedures. This is particularly so within the context of criminal justice where specific rules determine representation and associated rights. Once the child is invited or ordered to participate, the focus shifts from initial access to justice and becomes related to enforcement of rights within the justice system, although these are undoubtedly interrelated. The issues relating to effective participation for the child, whatever the role, are mainstreamed within this set purview of access to civil justice.

For the purposes of this section, the report will list a number of procedures deemed to enhance children’s participation and evaluate their effectiveness following their introduction and/or implementation in various member states.

a shall ascertain the child's views unless this is impracticable having regard in particular to his age and understanding; and
b may request that any appropriate enquiries be carried out.

However these two instruments do not impose any age limit as to when the child should be given access to justice. They use the terms ‘sufficient understanding’ and ‘capable of forming their own views’. This is left to be variably determined by each State Party’s internal law. A number of jurisdictions such as Malta, Belgium and the Netherlands place an obligation on the judge to listen to the child above a certain age. Below this age the courts have discretion whether to listen to the child or not. In the case of Maltese law in Family Court Proceedings the obligation is to listen to the child above the age of 14 while in the case of Belgium and the Netherlands in child protection proceedings the obligation is to listen to the child above the age of 12.13

In the case of adoption proceedings, most state parties to the CRC create age limits above which the consent of the adoptee is required. Below that age, the consent of the adoptee is not necessary, but his or her opinions should at least be heard. As the reports submitted by the CRC States Parties to the CRC Committee show21, these age limits range from 7 in some countries to as old as 15 in others.

While the Court has a duty to listen to the child it must also use innovative means to interpret what the child is actually saying. At times lay people need a wider understanding and therefore experts are required to assist the Court in interpreting what the child is saying. Therefore, apart from the child advocate, the mediator and the judge other experts may be appointed for the views and wishes of the child to be transmitted to the Court. Social workers and child psychologists are frequently the first resort, even before a child advocate.

Council of Europe


* Faculty of Laws, University of Malta.

2 UN Committee CRC General comment No 5 on General Measures of Implementation for the CRC “For rights to have meaning, effective remedies must be available to redress violations”

3 Article 12(1) States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.


4 There are a limited number of cases which have been heard before the ECtHR directly involving children although these have been brought on their behalf by an adult. [Tyrer v UK 1978 and Costello-Roberts v UK 1993 concerning corporal punishment in schools; D,H and others v Czech republic regarding discrimination in the right to education; etc]

5 The International Covenant on Civil and Political Rights 1966, Article 19

6 The Hague Convention on the Civil Aspects of International Child Abduction 1980, Article 13

7 ‘1 In cases other than those covered by Articles 8 and 9, recognition and enforcement may be refused not only on the grounds provided for in Article 9 but also on any of the following grounds:
b if it is found that by reason of a change in the circumstances including the passage of time but not including a mere change in the residence of the child after an improper removal, the effects of the original decision are manifestly no longer in accordance with the welfare of the child;’


8 As is clearly seen in the Declaration on the Rights of the Child 1924

9 Freeman M., in Fionda J. (ed0 Legal Concepts of Childhood, Hart Publishing, Oxford, 2001 pp183-201 : “There has been a move away from dependency towards advocating the autonomy of the child and the child’s ability to voice wishes and give evidence which should be given due weight…”

10 In Sweden for instance, children are only heard in court in exceptional circumstances where it can be proved that so hearing them will not prove harmful. Cited in Boele –Woelki et (eds), European Family Law in Action; Parental Responsibilities, Intersentia, 2005, p.794. Although Ryrstedt E and Mattson T. in their recent work on Children’s Rights to Representation – A Comparison between Sweden and England, International Journal of Law, Policy and the Family, 22(2008), pp135-147 make the distinction between the child’s locus standi as a party in public law proceedings as opposed to private law proceedings.

11 Current literature however also suggests that any emphasis on the duty to participate may be distorting the social conceptualisation of childhood, requiring an “unchildlike sense of autonomy” ( Diduck A., Justice and Childhood reflections on refashioned boundaries, p. 128 in King M. (ed), Moral Agendas for Children’s Welfare, 1999) It has also been suggested that shifting responsibility onto children may paradoxically end up leading to increased control over them and greater intolerance towards them (Muncie J., Governing Young People: coherence and contradiction in contemporary youth justice, Critical Social Policy, 26(4), pp770-793).

12 Explanatory Report to the European Convention on the Exercise of Children's Rights

13 Maltese Civil Code in Article 131(4), Code Civil Belgium in Article 394, Act on Civil Procedures Netherlands in Article 809

14 Child Welfare Act of Finland, Act 683/1983, Article 10

15 Child Custody and Right of Access Act of Finland, Act 361/1983

16 Norway’s third periodic report to the UN Committee on the Rights of the Child, (2003). The Rights of the Child. Oslo, Ministry of Children and Family Affairs/Ministry of Foreign Affairs

17 International Institute for the Child, “Through the Eyes of Young People”, Meaningful Child Participation in BC Family Court Processes" Report British Colombia, Canada, http://www.iicrd.org/familycourt/FinalMCP.htm

18 Sahin v Germany, Application 30943/96, Sommerfeld v Germany, Application 31871/96 and Hoffmann v Germany, Application 34045/96. These three cases heard before the European Court of Human Rights tackled similar issues namely the German Court’s refusal to grant parental access to their children born out of wedlock. In Sahin v Germany the substantive violation was the failure to hear the child’s own views. The European Court of Human Rights said that the national court had to take considerable steps to ensure direct contact with the child and that by that only can the best interests of the child be ascertained. In this case the child was aged 18 months when the parents separated, two when the mother stopped contact, and 10 when the domestic proceedings were concluded and 13 by the time the Strasbourg proceedings were concluded. The European Court was not satisfied by the reason that was brought, that the expert stated that it could be detrimental to question the child. In Sommerfeld the District Court had failed to order a psychological report which could have established whether views expressed by the children were genuine or had been distorted. It is interesting to note how the German authorities had relied blindly on the child’s wishes although the child was thirteen at the time in its decisions. The European Court was of the opinion that correct information on the child’s relationship with the applicant as the parent seeking access to the child was an indispensable prerequisite for establishing a child’s true wishes and thereby striking a fair balance between the interests at stake.


19 Law 272/2004 promulgated through Decree 481/2004 of the 21 June 2004 cited in a draft paper presented by RUSU Dan Brief Contributions on Highlights in Children’s Participation Across Europe: The European Cases at an ESF Exploratory Workshop on Child Participation in decision making: Exploring theory, policy and practice across Europe, Berlin, June 2008 .

20 During the workshop cited supra, the researcher made this report but stated that no cases have yet been brought before the court.

21 Fiona ang, Isabelle Delens-Ravier, Marie delplace, Didier Reynaert, Valentina staelens, Riet Steel, and Mieke Verheyde, ‘Methods of implementing participation rights of children’, Committee on the Rights of the Child. Day of General Discussion 2006


22 English Children Act 1989, see Articles 8 and 10(8)

23 Mrs Gillick brought an action against her local authority for the health centre’s prescription of contraceptives to her minor daughter without parental consent. The court found that a child may be competent even when still a minor and ruled against Mrs Gillick. Gillick v West Norfolk & Wisbeck Area Health Authority and Department of Health & Social Security [1985] 3 All ER 402

24 Re S. [1993] 2 FLR 437

25 CRC Article 12; § 388-1 C. Civ. (emphasis added).

26 Eva Mattei, La Parole et les Nouveaux Droits de enfant en Justice in L’Enfant Et Les Conventions Internationales 447, 454 (Jacqueline Rubellin-Devichi & Rainer Frank, eds.)(1996).

27 Article 1182 N.C.P.C.

28 Recommendation 1121 of 1990, para 6

29 Recommendation 8 of 1998, para 5

30 The UNICEF Regional Office for Central and Eastern Europe and the Commonwealth of Independent States (CEE/CIS), 2006.

31 The CRC, Article 13

32 A case in point is Re C [RE C [1993] 1 FLR 832 ] where a thirteen-year-old girl was present in care proceedings in the family court and also in a subsequent appeal on the issue. The child showed a clear desire to be present. The guardian ad litem agreed that this was in the best interests of the child and the magistrates exercised their discretion under Article 95(1) of the 1989 Act to allow the child to be present. Notwithstanding, Mr Justice Waite ruled that young children should be discouraged from attending family court proceedings and that it would be a pity if it would become a settled practice for children to be present at these proceedings in view of the fact that discussing the child’s future in front of the same child is not an experience one would wish for any child.

33 Voluckyté Saulè, The Right of the Child to express his/her views in Civil Proceedings and the Position of the Child under the Rules of Criminal Procedure in Lithuania, European Journal of Law Reform, Volume 8, 2006, Number 4

34 Ibid.

35 Swiss Civil Code in Article 314, Austrian Law on Civil Procedures

36 English Children Act in Article 41

37 Such representation is required at all levels and also in the context of appearance before international courts such as the UN Committee on the CRC itself. Effective enforcement of the Convention implies effective access to structures which render the law enforceable ab initio. ( Farrugia R., Effective Enforcement in the United Nations Committee on the Convention on the Rights of the Child, unpublished M.Phil. thesis , University of Malta library, 2001)

38 Farrugia R., Children’s rights in Family Court Proceedings in The UN Children’s Rights Convention: theory meets practice, Alen A et al (eds), Intersentia, 2007, ISBN 978-90-5095-640-6, pp. 401-418


39 Represents the child’s interests as opposed to the child advocate who should present the child’s wishes to the Court

40 Green B., Lawyers as Nonlawyers in Child-Custody and Visitation Cases: Questions From a “Legal Ethics” Perspective, 73 Ind. L.J. 665 (1998): “lawyers serving children would benefit from guidance about how best to proceed ….Where the legal community has reached professional consensus on the proper nature and scope of representation of children, it should make such standards explicit…”

41 Bundestag Deutscher, as quoted by Manuala Stotzel and Jorg M. Fegert, ibid.

42 CAFCASS

43 Irish Guardianship of Infants Act 1964, Article 28 as inserted by Article 11 of the Children Act 1997

44 The Save the Children and the Separated Children in Europe Programme, lists the following as the purposes for appointing a guardian for the child; ensure that all decisions are taken in the child’s best interests; accompany the child throughout the process for deciding on return or staying in the host country; inform the child about all possible options for durable solutions and about the different stages of the process; assist the child during interviews and in all stages of the process including, if necessary, appeal against return decision; support the child in assessing his/her situation and planning for the future; arrange competent legal representation for the child; consult and advise the child as appropriate; ensure that the child has appropriate opportunities to express their opinions; provide a link between the child and the organisations undertaking the necessary assessments and services in relation to return; act as an advocate on the child’s behalf; assist in re-establishing and facilitating contact with the child’s family. The programme also adds that the guardian should have relevant experience in the area to understand the particular needs of separated children.


45 Brisbane Australia; What’s happening in Court, Activity Book for children going to court in Wisconsin, USA; although Eltringham (1999) in a draft paper written with Aldrige about The Extent of Children’s Knowledge of Court as estimated by Guardians ad Litem suggests that many professionals overestimate how much children really know about court. In Raleigh, NC, USA on the 2 June 2008 a call for volunteers was made in the recognition that 17,700 children ended up in North Carolina courtrooms over abuse and neglect issues in 2007 and voluntary GALs are invaluable in helping such children through the court process

46 Krinsky Miriam Aroni and Rodriguez Jennifer, Children at Court and in Court – An Overview of Current Perspectives, California, 2008.

47 Separated Children in Europe Programme, Save the Children, Position Paper on: Returns and Separated Children

48 Nutbrown Cathy (ed), Children’s Rights and Early Education, Paul Chapman Publishing Ltd, first published 1996, reprinted 2003, p.7

49 Begley J., The Representation of Children in Custody and Access Proceedings, 1994

50 Beresford S., Child Witnesses and the International Criminal Justice System. Does the ICC Protect the most Vulnerable?, Journal of International Criminal Justice (2005) 3(3) p721-748

51 In Jones v Jones [1993] 2 F.L.R.. 377 an immediate custodial sentence was held to be justified in cases of aggravated and serious contempt even when no violence was involved.

52 Cretney S.M. and Masson J.M., Principles of Family Law, Sweet & Maxwell, 1997, pp. 712 -715

53 This is the case according to Maltese law where failure to observe a contact or maintenance order is deemed to be contempt of court. A recent case involved 2 children aged under 14 years who had not been heard and who adamantly refused to visit their father notwithstanding a court order resulting in the mother’s being condemned to 5 days imprisonment. The appeal is still pending.

54 Skjorten K. and Barlindhaug R., The involvement of children in decisions about shared residence, International Journal of Law, Policy and the Family, 21(2007) pp 373-385

55 UN document E/2002/68/Add.1, 20 May 2002.


56 Op. cit., The UNICEF Regional Office for Central and Eastern Europe and the Commonwealth of Independent States (CEE/CIS), 2006.

57 ‘Essential Safeguards as Regards Children in the Context of the Proposed EU Returns Directive’, Response of ‘Save the Children’ to the proposed EU Returns Directive, December 3, 2007.

58 Scottish Executive Central Research Unit, ‘Giving due regard to children's views in all matters that affect them Voice of the Child Under the Children (Scotland) Act 1995’, September 04, 2002.

59 Geary Patrick, A Child’s Right to Expression in the Courtroom under International Conventions on the Rights of Children and French National Law: Where does this leave the ECERC? Spring 2005

60 List of Declarations made with Respect to Treaty No. 160 (European Convention on the Exercise of Children’s Rights), available at <http://conventions.coe.int/Treaty/Commun/ListeDeclarations.asp >

61 Freeman Michael (ed), Children’s Rights, A Comparative Perspective, Dartmouth Publishing Company, 1996, p.1