Group of Specialists (CJ-S-CH)
Introduction to the Guidelines
Text of the Guidelines
Related texts and documents
Databases, Materials and Links
Strasbourg, 27 June 2008 CDCJ (2008) 26 rev
[cdcj/cdcj et comités subordonnés/83e réunion plénière du CDCJ/ documents de travail/CDCJ (2008) 26 rev e]
EUROPEAN COMMITTEE ON LEGAL CO-OPERATION
FINAL REPORT ON CHILD-FRIENDLY JUSTICE
EUROPEAN GUIDELINES ON CHILD-FRIENDLY JUSTICE WITH PARTICULAR FOCUS ON CHILDREN'S ACCESS TO AND PLACE IN THE CIVIL JUSTICE SYSTEM
The opinions expressed in this work are the responsibility of the author(s) and do not necessarily reflect the official policy of the Council of Europe.
Following the adoption of Resolution No 2 on child-friendly justice at the 28th Conference of European Ministers of Justice, which took place in Lanzarote in October 2007, the Committee of Ministers entrusted the European Committee on Legal Co-operation (CDCJ), the European Committee on Crime Problems (CDPC), the Steering Committee for Human Rights (CDDH) as well as the European Commission for the efficiency of justice (CEPEJ) in co-operation with other competent bodies of the Council of Europe, with the task of preparing European Guidelines on child-friendly justice.
Following the decision of the CDCJ, CDPC and CDDH, four consultants have been hired to prepare reports on child-friendly justice in the committees’ respective fields of competence, namely on civil and administrative justice (CDCJ), criminal justice (CDPC) and human rights (CDDH). The reports aim at assessing the challenges and obstacles that children face in accessing justice at national level, in all sectors of the judicial system.
This document encloses the initial structure of a report gathering elements for European guidelines on child-friendly justice with particular focus on children’s access to and place in the civil justice system. This draft report will be finalised by 30 June 2008.
This draft report attempts to address the initiative taken in addressing the concerns of the Council of Europe by contributing towards the provision of elements for European Guidelines on child-friendly justice, with particular focus on children’s access to and place in the civil justice system. At present, varying procedural rules place the child at the mercy of the discretion of the Court of each State. Although the United Nations Convention on the Rights of the Child (CRC) imposes the duty to give every child the right to be heard, there are no agreed basic minimum standards as a guide.2
The report contains:
1. A check-list of situations where children need to access civil justice, including alternative dispute resolution mechanisms, litigation and post-proceedings situations in family and civil matters;
2. An overview of child-friendly civil procedures implemented in member states, including:
i. an evaluation of the challenges and the obstacles children face in accessing civil justice at national level by examining the access and the place children have in the judicial proceedings as well as prior to accessing courts and after the judicial decision, including mediation; and enforcement procedures;
ii. an examination of the way in which the views of children can be taken into account during such proceedings;
3. An overview of the standards and reports of the Council of Europe in the fields of justice, human rights, and civil law; as well as the existing universal and regional international legal instruments dealing with children, in particular the European Convention on Human Rights and the European Convention on the Exercise of Children’s Rights and the United Nations Convention on the Rights of the Child.
1. The Check List
Children require effective means to access justice in various situations, depending on their maturity and understanding rather than according to a standard age set within the law. As children are not deemed to have locus standi in most cases, their involvement and its form remains a matter for judicial discretion. Children may require appropriate legal services in order to become conversant with notions of justice and in order to be able to access justice. Where children do not participate in proceedings this should be the result of informed choice. The right to participate in the case of children should not imply a duty to do so.
The following list is an attempt to identify those instances in which children have the right or need to access justice. It is strongly felt that children should always be acknowledged as having a right to access justice in all matters which may impact on their present or future well-being, notwithstanding the lack of inclusion of a specific item on any list.
i. Children require general information regarding their legal position and rights
ii. Children may need access to information relating to filed (but not commenced) court proceedings which concern them
iii. The views of children should be included in conciliation sessions where family proceedings are prospected, particularly in cases of violence and/or abuse.
iv. Children should be party to mediation proceedings, particularly in cases dealing with their care, residence, contact or access and maintenance.
v. The views of children should be included in out of court and/or arbitrated settlements when these settlements will impact on the child.
b. During litigation /pendente lite
i. Children have a right to specific information regarding their legal position and rights.
ii. Children have a right to be kept updated with events within the litigation process in age appropriate terms to enable them to determine whether they wish to participate or contribute to the proceedings.
iii. Children have the right to be informed of all decisions having a direct or indirect effect on their present and/or future wellbeing.
iv. Children would require specific access to
1) all contested divorce, separation and annulment cases
2) all uncontested divorce and separation agreements
3) adoption cases, whether national or cross country
4) Cases involving alternative forms of care
5) Cases relating to allocation of maintenance and/or state aid
6) Cases relating to abuse where civil damages are sought
7) Specific Protection and /or Treatment orders placed on the Family which impact on the child
8) Cases involving changes to issues relating to parental responsibility/authority
9) Cases relating to acknowledgment of paternity and/or maternity
10) Cases regarding the appointment of a guardian or tutor, including asylum cases
c. Post litigation
i. Children should be informed of the enforcement of decisions relating to contact, custody, maintenance
ii. Children should be updated as to requests for changes to prevailing contracts
iii. Children should be informed of events leading to a change in circumstances of care
iv. Children may need to inform a party and/or the Court of changes in personal requirements
v. Where enforcement is weak or ineffectual, children should be empowered to take steps through access to justice
vi. Where enforcement measures affect the custodial parent, the child should be enabled to express wishes and concerns.
2. Overview of child-friendly civil procedures
This section identifies those procedures which are deemed to be child friendly and which are implemented in member states.
(i) an evaluation of the challenges and the obstacles children face in accessing civil justice at national level by examining the access and the place children have in the judicial proceedings as well as prior to accessing courts and after the judicial decision, including mediation and enforcement procedures;
(ii) an examination of the way in which the views of children can be taken into account during such proceedings;
The most significant changes and arrangements for better access and child-friendly justice frequently originate in the juvenile courts and, more recently, attention to child friendly access has been given due consideration in the International Criminal Court. In the context of civil justice, children are more commonly included or referred to within the context of family breakdown although there are other instances where children may require effective access to the civil justice system.
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.
2.1. The Right to be Heard
Children of all ages have the capacity to express their views – at different ages they express them in different ways. They express them differently from adults and often adults are incapable of understanding these views because adults may not be sufficiently available to listen to the child and interpret what is actually being said. All member states have ratified the United Nations Convention on the Rights of the Child and therefore acknowledge and agree that children have this right to be heard in accordance with Articles 12 and 13 of the CRC. While Article 13 recognizes in a general way the right to freedom of expression, Article 123 applies to those cases where the matters at stake affect the child, stressing the right of the child to be heard and for the child’s views to be taken into account. The child has a right to access justice just like any individual with independent opinions, wishes and interests. 4
The Universal Declaration of Human Rights states in Article 19 that:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
The International Covenant on Civil and Political Rights says that: ‘Everyone shall have the right to hold opinions without interference’5. There is no reason to conclude that “everyone” should exclude children.
The Hague Convention on the Civil Aspects of International Child Abduction 1980, allows the judicial or administrative authority to refuse the return of the child to his habitual residence if the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his/her views.6 The Preamble to the European Convention on the Exercise of Children’s Rights (ECERC) also echoes this emerging commitment towards ensuring that the views of the child are given due weight.
The European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children of 1980 also respects the child’s views and in Article 15(1) states that:
Before reaching a decision under paragraph 1b of Article 107, the authority concerned in the State addressed:
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.
The child is increasingly seen as the holder rather than the recipient8 of rights, the subject rather than the object of international law9. Within the jurisdictions of all Council of Europe member states, the notion of the right of the child to be heard has become something of a catchphrase akin to the premise of “best interests”10. There is no doubt that the principle is agreed to unanimously among all member states, although ironically, the phrase may also be used as a means to prevent effective access to justice for children. Even participation rights themselves may sometimes be viewed in the context of impacting on children in a potentially negative way. 11 However this should not be interpreted as excusing any authority from the responsibility of ensuring the right in the first place or as a pretext for denying it. The following titles will examine to what extent this right is enforceable.
2.2. Criterion of Age versus Maturity and Understanding
The CRC establishes 18 years as a standard above which a child enters adulthood. However it contains a qualification in that it says that below the age of 18 one is considered a child ‘unless under the law applicable to the child majority is attained earlier’. Similarly the ECERC applies to all children who have not reached the age of 18 years. The age of 18 has in fact become, in virtually all the Member States of the Council of Europe, the officially accepted age of majority.12
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 Finland, the Child Welfare Act empowers the child at age 15 to “have a say “in child welfare cases which directly concern him/her and at age 12 the child may demand support including access to social services.14 The Child Custody and Right of Access Act also tries to take into account the opinion of the child when determining custody and access issues however it is unclear whether children below the age of 12 have the right to be heard in such proceedings. 15
In Norway, recent amendments to the Children Act, the Adoption Act and the Child Welfare Act now enable children aged seven years to have a right to be informed and express their views before decisions are made in cases that affect them. The legislation previously set the age limit at 12 years.16
In Germany there seems to be the trend to hear children no matter how young they are so that the court may understand their relationship with their parents. It is reported17 that German courts have stated in past decisions that children over the age of 4 years are deemed capable of expressing their views and a guardian is appointed to safeguard the best interests of the child. However cases brought against Germany in the ECtHR show that there have been violations against this responsibility carried out in the name of the best interests principle. 18
According to Romanian Law19, a child who has reached the age of 10 years has the right to be heard in all administrative or judicial proceedings concerning him or her. At this age, the child also has the right to give or withhold consent within an adoption procedure. At 14 years the child may request the approval of a court of law to change the type of education and professional training s/he is receiving. It is also reported20 that according to Article 29 para 1 of this law, children have the right “to file their own complaints relating to violations of their rights”.
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.
The English Children Act, 1989, on the other hand, provides for situations where, if the child has sufficient understanding, s/he can apply directly to the Court to issue an order to determine any aspect of parental responsibility for the child.22 The child must however obtain leave from court, which leave would be granted against testing the sufficient understanding of the child according to the Gillick test23. Furthermore, in such situations a guardian ad litem may act as a bridge between the child and the advocate. Still a child with sufficient understanding can decide to bring proceedings. In this way a balance is struck between recognizing that children are individuals with rights and views to express and a guardian ad litem can protect them from the pressures of responsibility in decision making.
The Court still retains discretion to determine (generally against Gillick competence) whether the child has sufficient understanding. In the case of Re S24, in giving the judgment of the court, Sir Thomas Bingham MR said that:
…Different children have differing levels of understanding at the same age. And understanding is not absolute. It has to be assessed relatively to the issues in the proceedings. Where any sound judgment on these issues calls for insight and imagination which only maturity and experience can bring, both the court and the solicitor will be slow to conclude that the child's understanding is sufficient.
Similarly, French law translates Article 12’s right to express views to the child’s apparent possibility of expressing those views (a minor capable of discernment . . . may be heard).25 Though this might at first seem problematic, the French provision was designed to ensure a child’s right not to express her/his views should s/he not wish to do so, as in a contentious divorce proceeding.26 In educational assistance proceedings, however, the judge must hear the child’s views under the rules of civil procedure before any disposition may be finalized.27 Thus, at least with respect to child protection measures, French law would seem to meet the CRC’s obligation that all children capable of forming views be heard.
In case of infringement of fundamental human rights, on the other hand, Article 34 of the European Convention on Human Rights provides that the Court may receive applications from ‘any person’ claiming to be the victim of a violation of the rights therein. In principle, a child, whatever the age, may apply directly to the European Court of Human Rights.
The Council of Europe has made recommendations giving recognition to the autonomy of the child in accessing justice. Recommendation 1121 (1990)28 of the Parliamentary Assembly recognizes that “children have rights they may independently exercise themselves – even against opposing adults” and Recommendation 8(1998)29 adopted by the Council of Ministers affirms that “participation of children is crucial in influencing the conditions of their own lives…”
However, it is the way children at different ages are approached and treated in court that a distinction must be made at different ages and this must be taken on a case by case basis. Even children of a very young age have ways how to express themselves. That is why experts dealing with children must have training in areas such as child psychology as they would then have more expertise in knowing how to deal with the child as an individual rather than with children as a collective entity. When treating with very young children, for instance, there must be respect for different forms of communication, including drawing, painting, facial expressions, body language and play. This also applies to children (and later adults) with disabilities in ensuring they have the support and tools needed to have their opinions understood.
As an example, the UNICEF Reference Guide on Protecting the Rights of Child Victims of Trafficking in Europe30 gives the example of age appropriate literature and states that:
The sort of information to present to children varies according to the age and maturity of the children involved. The content and form needed for a 9-year-old who has been trafficked is different to the information required by a 17-year-old.
2.3. Access to Knowledge of the Law
In order for children to be able to access justice they must be empowered to seek out information which helps them understand what is going on by means of age appropriate knowledge of the law and accompanying legal procedures. Children should enjoy the right to ‘seek, receive and impart information.’31 Where the child is informed, in a child friendly manner even before the need to actually access justice, the child can make informed choices, participate meaningfully or even refuse to participate. In order to participate, however, children must have access to information about the issue at hand, in a form that is accessible and suitable to their age.
This should also include knowledge of the progress and outcomes of initiatives the children or young people have taken part in. In cases of full adoption, for example, the legal ties between the adoptee and the biological parents are broken, so it is necessary to inform the child of the consequences should s/he withhold or refuse consentInternational instruments such as the Draft European Convention of the Council of Europe on the adoption of children 2007 (revised) recognises the right of the adoptee (child) to be provided with relevant information and that due weight should be given to the views of children States should undertake to seek the consent of the child where the latter is deemed to have sufficient understanding. Different media can be used to provide children and young people with a unique channel through which appropriate information in accessible formats can be transmitted.
In the States Parties’ reports to the CRC Committee, some good practices can be found concerning the right to participation in adoption and whether the adopted child should have access to information on his or her birth parents. Some member states oblige the adoptive parents to inform the child of the fact of the adoption. However, most countries grant the adopted child a right to information on his or her origins, but only when the adoptee has reached the age of majority. This might contribute towards impeding the child (minor’s) right to learn about his or her birth parents.
2.4. Access to an Advocate
In civil proceedings, children are nearly always represented by their parents, their mother or father, their statutory guardian/tutor or the authority which has assumed parental responsibility in the event of a conflict of interests between the children and their parents. The child under the English Children Act has the right to initiate proceedings in a broad range of situations. S/he may challenge an emergency protection order, seek a contact order when in care, or ask for a care order to be discharged. The English courts are however, reluctant to allow children to be present at the court proceedings. A number of cases show how judges discourage youths from being physically present at family court proceedings32.
In Lithuania, it would appear that a child above the age of 14 can initiate civil proceedings in two areas. The child who has reached the age of 14 may file a complaint to court regarding his/her minor household transactions and certain independently acquired property rights and if s/he believes that his/her parents are abusing his/her rights.33 Article 3.142 (3) of the Lithuanian Civil Code also allows the child to initiate proceedings to acknowledge paternity. However, the parents must support this action of the child with their written authorization and if this is denied, the child may apply to court to receive the court’s authorization on this matter. Also Article 3.142 (2) requires the written consent of the 10 year-old-child to initiate the proceedings, where the child has not done so. Under Article 3.144 (1) the court may ignore the 10 year-old-child’s objection to initiate proceedings whereby the paternity of the child would be acknowledged. In contrast to this provision, the court may not waive the adult-child’s objection to proceedings under Article 3.144 (3).34
However generally children do not have the independence to take legal action and are represented by guardians/tutors or legal representatives and because the child is not a party to the proceedings s/he cannot request the appointment of a child advocate himself/herself. Provisions in Switzerland and Austria provide that children should be heard in child protection proceedings, but the child may be heard by a third person and children under 10 years are rarely heard personally.35 Participation in court proceedings may also be provided by the appointment of a guardian ad litem for the proceedings. The English Children Act of 1989 provides for the appointment of such a guardian in context with applications for or discharge of care or supervision orders.36
The right to the appointment of a child advocate is in line with the child’s right to be given a voice. This is also in keeping with Article 12 of the CRC which in the second paragraph states that for the right of the child to express his/her views to be implemented, ‘the child shall in particular be provided the opportunity to be heard … either directly or through a representative or an appropriate body…’ This includes the possibility, although not exclusively, of appointing a child advocate for the child.37
The European Convention on the Exercise of Children’s Rights also asserts the right of the child to be represented by an advocate:
Article 5 – Other possible procedural rights
Parties shall consider granting children additional procedural rights in relation to proceedings before a judicial authority affecting them, in particular:
a. the right to apply to be assisted by an appropriate person of their choice in order to help them express their views;
b. the right to apply themselves, or through other persons or bodies, for the appointment of a separate representative, in appropriate cases a lawyer;
c. the right to appoint their own representative;
d. the right to exercise some or all of the rights of parties to such proceedings.
Therefore, the European Convention goes even further in that the child has the right to apply for the appointment of a separate representative and this person can be ‘an appropriate person of their choice’.. This is not the case in the majority of the Member States and the fact that the European Convention has only been ratified by 6 states may also be telling.
In the Maltese experience where a child advocate may be appointed, the job of the lawyer is to multitask: s/he must represent the child through the Court process and in any negotiations between the parents or other parties to the case; find out the child's views and make the Judge aware of them; make sure the child's best interests and all issues affecting welfare are put before the Court for its consideration; explain the Court process to the child and, at the end of the process, explain the Judge's decision.38 Whether this adequately serves the child’s rights within a client-lawyer relationship is another matter altogether.
However, as in a number of other jurisdictions, the child advocate is appointed only when the judge, mediator or any of the parties make a request and then only if the judge deems it appropriate. The parents are even given the right to present an application for the court to refuse the appointment of a child advocate. Although this application is usually refused, this right is in dissonance with the need to increase the access of the child to court proceedings. The child is not a party to the proceedings and often, the child is not even aware that a child advocate can be appointed in representation.
A child advocate may be appointed at various stages of the proceedings. At the mediation stage, in family breakdown proceedings a child advocate may be appointed, though in reality this does not happen very often. At the mediation stage, the child advocate should especially be appointed when the issues discussed relate to child maintenance, custody and visitation rights. The child advocate should even be present earlier and throughout the proceedings including such stages as the mediation process where s/he would present the wishes the child has expressed.
In some jurisdictions, the office of the guardian ad litem39and child advocate have become enmeshed forcing the child advocate to try and strike a balance between advocating the best interests and representing the wishes of the child. This may place the advocate in a conflict of interests when attempting to advise a child client of the law while advocating for best interests. The wishes of the child and the advisability of pursuing them may often differ but while the advocate of an adult has no hesitation in giving advice and leaving it up to the client to make an informed choice, child advocates seem to be expected to disregard wishes at will and exercise paternalistic attitudes better suited to the bench. The lack of clear direction in this issue is a cause for concern and attention. 40
2.5. Appointment of GAL
The Court may appoint a guardian ad litem for a minor child in proceedings where it is necessary to safeguard the interests of the child. S/he takes care of the child throughout the process and makes explanations to the child. Ultimately it is the Court which must decide in the best interests of the child and in every decision the welfare of the child is supreme/ paramount or taken into account depending on the pertaining jurisdiction. The guardian ad litem is appointed to help the Court establish what must be done in the best interests of the child and to act as a bridge between the child and the court. A guardian ad litem may be appointed together with the child advocate and sometimes exclusively.
German law introduced the guardian ad litem in 1998 to represent the interests of children in certain family and guardianship proceedings. The reason behind the introduction of the guardian ad litem into German law was ostensibly to ensure ‘that the independent interests of the child are incorporated into the procedure so that the child does not become a mere object of the proceedings’41. The law laid down that the guardian should represent the interests of the child but this was meant to include also the wishes of the child (resulting in the conflict of interests previously referred to in reviewing the function of the child advocate) The appointment is then waived if a lawyer or any appropriate representative properly represents the interests of the child. No criteria are established in German law for the appointment of the guardian ad litem and lay persons are also considered capable.
In English Law the guardian ad litem office also exists and is regulated by Section 41 of the 1989 Children’s Act... In England and Wales, a child has access to two representatives in ‘specific proceedings,’ which include care and supervision orders. In England, the children's guardian appointed from the Children and Family Court Advisory Social Service42, represents the best interests of the child. In Wales, the children's guardian equivalent is called a Family Proceedings Officer. This person fills the exact same role and is governed by the same statute and court rules as England's children's guardian.
In Ireland there must be special circumstances for a GAL to be appointed which results in such appointment only being made in the most pressing of cases. There is no provision for a child advocate to be provided for a child in parental responsibility proceedings or cases regarding custody or residence orders. This also emanates from the fact that the child is not a party to the proceedings as in the other countries already mentioned. The courts may themselves appoint a solicitor to act on behalf of the child.43
In the case of migration procedures, due to the vulnerability and complex situations of many separated children, an independent guardian should always be appointed as an essential safeguard in the process of ensuring that separated children are able to make a truly informed and independent decision on the question of voluntary return. This is particularly so given the complex framework of legislation within which decisions are made and the fact that separated children, by definition, lack a carer to advocate on their behalf.44
2.6. Court Environment
Another step for the child to effectively access justice in the courts is preparation for the court visit. The child may be apprehensive or frightened by the new environment, and this may inhibit the child's ability to participate meaningfully. Often children stand alone, intimidated and scared in the court room, sometimes facing relatives against whom they might be required to testify
The courtroom is alien to the child. The dress code and orderly manner with which proceedings are handled therein is also new to the child. Children would have probably never seen what Court looks like except maybe on TV. This may fill them with insecurities and fears about visiting Court. Although it is time consuming, organizing a visit and explaining the different courts and where the different judges and lawyers sit, is ideal before the child is due to be heard. In jurisdictions where barristers wear robes and wigs this visit is also important because the child might feel threatened by these formalities. The child should also be advised on the etiquette that is expected from him/her in court. These visits should become part of the Family Court’s counseling program in the effort to demystify the court system for the child.
When in Court it is also important for the child to be accompanied by a person with whom s/he can feel secure. If a child is to be able to initiate proceedings, it makes sense to be able to make his/her way through the court independently. Children will have views and ideas on how to construct effective methods of involvement that are likely to differ from processes or forums designed for adults. They must be recognised as having expertise in being young and knowing what works for them. Forums for children can give adults ideas on how courts can be constructed in a more child friendly manner. Signs especially designed for children or maps at the entrance can help the child not to feel lost. Australia and the US have made great advances in this area and examples of good practice are readily available in many different formats. A good number of these have been tried and tested and feedback from children is also available. 45
Prior to court hearings, it is also imperative that a lawyer (ideally the child advocate) explains the purpose of the hearing to the child. The child should be prepared both in knowing what to expect as regards the physical environment of the court but also what issues may be discussed and what issues are appropriate for him/her to speak about. The belief that the court process is ‘too complex’ for youth to be capable of participating effectively can be overcome by having all involved endeavor to explain in simple terms what is taking place and preparing the youth beforehand for standard court protocols. 46
2.7. Child Participation in Court
Not listening to the child can have grave repercussions. Dramatic examples can be highlighted from custody proceedings where the child might know things about one of the parents which no-one else knows or has witnessed and in the return of separated children, in immigration procedures.47
Furthermore, the importance of the issues dealing with cases which involve children, calls for exceptional diligence on the part of the courts because any delay is likely to result in damage to the child. Delay can be a barrier to child participation because the child might retreat into himself/herself and feel discouraged about being listened to. Even in cases of abuse the child may forget certain details in recalling what actually has happened. Article 7 of the European Convention on the Rights of the Child, says that where proceedings concern a child ‘the judicial authority shall act speedily to avoid any unnecessary delay’. It is also interesting that the Convention does not stop there but stresses the need of ‘procedures to be available to ensure that its decisions are rapidly enforced.’ Justice delayed is justice denied, and in the case of children this has an added dimension.
The English Children’s Act in Article 1(2) is very clear:
In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.
The ECtHR tackles the issues of undue delay in all cases but in those instances where children are involved additional repercussions are warranted if children’s rights are to be protected and their confidence in access to justice strengthened.
Where the Court has issued authorisation to proceed, either party may initiate proceedings before the judge. Where the child is not a party to the proceedings he/she obviously cannot bring evidence in support of his/her case. The notion of the child being extraneous to the proceedings is rooted in the notions of best interests and vulnerability. However it is a fact that the effects of the judgment will directly impact ion the wellbeing of the child and it is therefore questionable at the least to pass judgment without reference to the child’s sense of the situation and reaction to proposals.
While it is an unresolved recommendation whether to include the child as a party or not, the truth remains that children are very much a part of the judicial process in family proceedings. While no one would dream of deciding matters in the absence of an adult, this is standard practice for children in the name of protecting their “best interests”. Matters which are resolved and adjudged in family proceedings have a direct effect on the present and future well being of the children involved so disregard for their views is unpardonable. Children who are mature enough to understand the implications should be assured the right to participate in proceedings if this is what they wish to do.
During the proceedings the parties through their advocates make their submissions and counter submissions. Where appointed the child advocate issues a report following a meeting with the child. The child at this stage can therefore be heard through the child advocate, if an advocate is appointed, viva voce in Court where the judge asks for the child to be heard directly, or by giving evidence as any other witness in the form of an affidavit. The judge may also ask for the child to be heard in camera after an affidavit has been filed. On a number of occasions, this may be preferential to the filing of the report more usually processed as children are frequently concerned that their reported wishes may be interpreted as taking sides with one parent against another. However the issue of confidentiality of between the child and the child advocate remains unresolved as judges frequently demand a written report which is them made available to all parties in the spirit of fair process and discovery. At the least, the child’s wishes should reaching the court in a format which makes it possible for the child to maintain good relations with the persons who will have responsibility for his/her care.
After the child has been heard or his/her wishes have been considered through the report of the child advocate, it is to be expected that the court should give judgment taking into consideration the child’s views. This is not to say that the court should always pass judgment in accordance with the child’s wishes – after all the judgment does not always reflect all the parties wishes, however the child’s wishes must at least be taken into consideration. The child should be told clearly that it is an opinion which is being solicited and that the judge may decide against such opinion or wish.
The child’s right of information also involves explaining to the child that his/her wishes might not always feature in what the court decides. This is the distinction between participation and autonomy or self-determination 48. Adults might find it obvious but children might expect that because they are being asked about the situation and because they are voicing their wishes these will automatically be granted to them. This should be one of the functions of the child advocate:
… the child's wishes are only one piece of evidence to be weighed by the judge in making the final determination, but it is extremely important that they be presented to the court as forcefully as possible in order that the child's voice be distinctly heard.49
All those involved in the process of dealing with children at court, especially the child advocates/solicitors and judges should gain some knowledge on pedagogical issues through training courses, to be able to effectively listen to the child. Verbal expressions of the child are sometimes not sufficient. Expressions are reinforced through other means so that attitudes and silences, for instance, should also be taken into account. Some children do not know how to express themselves very well. These experts must be able to ‘decode’ the child’s words. This training should also inform the adults of the right conditions under which a child is heard in court. For instance, the invitation for the child to come to court in order to be heard should be in simple wording so the child can read and understand it. Also the hearing itself, when children are present should be appropriate to the child’s age and understanding and the judgment when delivered should also be in a child friendly version.
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.
Experts may be necessary in this context because the child may not always have the skills to express himself/herself in front of the judge or the child advocate. Sometimes however there may be conflicts between the therapeutic and legal professions and it is vital that all professionals working on any particular case recognise the fact that they are there at the service of the same child.
The court may appoint experts at its own initiative or the expert can also be appointed ex parte. A parent may, for example, refer the child to a psychiatrist, who in turn also draws up a report which can then be exhibited in court. Where abuse is alleged children are often examined or interviewed by the different experts hired by the parties, in addition to court counsellors and court-appointed expert. The child’s legal position in this context should be represented by separate legal counsel if only to ensure that the child does not riskbeing abused by the system itself. The court also has a firm role to play in this context by clearly setting out guidelines of what is and what is not acceptable in the filing of independent reports. It is not usually conducive to the child’s well-being to be examined by several professionals repeatedly in order to produce varying reports that miught sway the court.
Where the child is to be heard in open court it also up to the judge to ensure that the child is treated with due consideration by all parties and not victimised in any way. Cross examination may be stressful and lawyers should be restricted in the methods they can use and the length of time they can question a child. A number of jurisdictions in the USA, Canada and Australia have strict rulesof court relating to this issue as does the International Court of Criminal Justice in its recent procedural guidelines.50
It has been questioned whether the voice of the child should be the same in all spheres: in contractual as well as in family matters, for example. However if the principle is to accord children an effective means to exercise their right to be heard, the context should not affect the type of voice or how much the child should be heard. Child-friendly structures will need to be adapted to each particular sphere as the child victim of abuse for example would be in need of facilities like videoconferencing whilst a child participating in contractual proceedings would probably not. The central issue is how much the child would be affected by the outcome of the process and whether s/he has anything to say about the issues being raised in court. It is unthinkable that decisions should be taken about capable adults in their absence yet current practice shows that court decision are constantly taken regarding a child’s present and/or future well-being with no recourse to the child’s views.
It is considered contempt of court to disobey a court order, and although it has been said that committal orders should be made in family cases very reluctantly and only when every other effort to bring the situation under control has failed or is almost certain to fail that a sentence of imprisonment is appropriate.51 Enforcement of the decisions of civil courts may also present problems both in cases concerning the termination of public care and in those relating to the exercise of access rights after a divorce or separation. Problems in the latter area have led to a considerable increase in cases relating to the international abduction of children and application of the Hague Convention, which demands the immediate return of the child to the parent awarded custody.
The court may act on its own motion or by complaint and the child should have a right to file such a complaint if the situation is affecting him/her. However considerable care is required here and precise observance of the correct procedures must be followed. In a number of jurisdictions, where a court order requires a child to be handed to another person and this is disobeyed, the court which made the order may authorize an officer of the court (or in the case of a magistrate’s court, a police officer) to enter premises (with force, if necessary), search, take charge of and deliver the child to the person concerned.52 In practice the courts appear reluctant to use enforcement powers except to ensure that it is in the child’s best interests, as enforcement weapons are likely to aggravate hostility between the parties. In contact orders a parent who refuses to permit contact may even be imprisoned53. In enforcement procedures, even where the child has not made the petition personally, the child should be given a voice.
A child may be directly affected by a parent’s failure to honour a maintenance decree and this may have repercussions on his/her present and future well being. Similarly changes in contact and residence have a very direct effect on the child’s lifestyle and happiness and research shows that where children are involved in the decision making process there is always a better outcome. 54 Other civil procedures may change the birth rights of a child through paternity suits or adoption and may involve dramatic changes to the child’s life.
Appeals from decisions may also potentially be in the wishes of the child. This may be particularly relevant in terms of fundamental human rights issues where the child may feel aggrieved by a decision given under Article 8 or Article 12 and may wish to bring the case before the ECtHR without having an adult to do so on his/her behalf. There is a lacuna in this regard.
A number of specific legal instruments call for remedies to become more easily available. The “Recommended Principles and Guidelines on Human Rights and Human Trafficking” of the UN High Commissioner for Human Rights point out, in Guideline 9, that:
Trafficked persons, as victims of human rights violations, have an international legal right to adequate and appropriate remedies. This right is often not effectively available to trafficked persons as they frequently lack information on the possibilities and processes for obtaining remedies, including compensation, for trafficking and related exploitation. In order to overcome this problem, legal and other material assistance should be provided to trafficked persons to enable them to realize their right to adequate and appropriate remedies.55
The UNICEF Reference Guide on Protecting the Rights of Child Victims of Trafficking in Europe56 stresses the fact that children who have been trafficked should be provided with information about remedies they are entitled to and how to exercise these rights. It states that information on available remedies might be channeled to children (in an appropriate form and language) through lawyers who are likely to represent trafficked children, but should also be provided directly to trafficked children and their guardians.
Save the Children writing on the EU Return Directive stated:
Special provision should be made for ensuring all children have appropriate access to judicial remedies. Article 12 should provide that child friendly procedures be put in place to ensure that children can access these rights. Article 12 should expressly state that legal aid be available to unaccompanied minors.57
In practice, remedies within the court system in general but within the civil law context in particular, are seriously lacking for children. It is usually up to adults to appeal from the final judgment, but what if the child feels aggrieved by the outcome and from the fact that s/he was not given participation rights? A Scottish feasibility study58 found that children lacked sufficient information. The key to accessing the remedies (if there are any) is to know about the availability of these remedies. Furthermore it was found that many children felt aggrieved by the prolonged legal proceedings requiring further exploration of the causes and potential remedies for the child on this aspect. On this point the child advocate has a very important role to play as s/he might be the only way the child gets to know about the available remedies and remedies which might be difficult for the child to access independently may be made accessible through the child advocate.
Official monitoring of the enforcement proceedings from a child rights perspective would also help for a more efficient and effective child-friendly system.
2. ii Some ways in which the views of children can be taken into account during proceedings;
1. Changes in attitudes to enable adults in the Family Justice System to support and empower children to participate. This includes:
a. Approaching children and young people without the preconception that they are incapable adults and therefore worthy of trust, respect and understanding;
b. Building a common framework for professionals who work in the Family Justice System so they can work together better to support children and young people;
c. Education & Training for decision-makers and all those supporting children and young people so they are better informed about children’s rights and what works best for them;
d. Practice standards, screening and certification to ensure that people who work with children are being effective and doing a good job at supporting them;
e. Assessment, monitoring and continuing evaluation of the Family Justice System to ensure that it is doing a good job in supporting young people.
2. Improved support to children and young people directly, including:
a. Information for children in a way they understand;
b. One caring adult to support each child in participation in the family court system.
3. Improvements in the system support for children and young people and their participation, including:
a. Legislative and Procedural Changes: a presumption that all children and young people will participate in decisions affecting them;
b. The automatic appointment of an advocate to represent the child unless the child declines or is too young or immature to require such advocate;
c. A less adversarial Family Justice Process that focuses on the children and young people affected by decisions, and helps family disputes end more quickly;
d. The automatic appointment of a GAL to assist the court in establishing the best interests of the child or young person;
e A court environment that takes into account children and young people;
f. Access to all court documentation in terms that are comprehensible to the child or young person;
g. Effective and accessible options to support the meaningful participation of children and young people;
h. Rules of court to protect children and young people when participating in the Family Justice System.
3. Overview of the existing universal and regional international legal instruments
The following is an overview of the existing universal and regional international legal instruments on the various rights of children highlighting how children can access to these rights through child-friendly procedures which give them a voice in court.
Council of Europe
MAIN LEGAL TEXTS
• Convention for the Protection of Human Rights and Fundamental Freedoms (1950)
• European Social Charter (1961)
• Revised European Social Charter (1996)
• Additional Protocol to the European Social Charter Providing for a System of
Collective Complaints (1995)
• European Convention for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (1987)
• Council of Europe Convention on Action against Trafficking in Human Beings
• Convention on Contact concerning Children (2003)
• Convention on Cybercrime (2001)
• European Convention on Nationality (1997)
• European Convention on the Exercise of Children's Rights (1996)
• European Convention on Recognition and Enforcement of Decisions concerning
Custody of Children and on the Restoration of Custody of Children (1980)
• European Convention on the Legal Status of Children born out of Wedlock (1975)
• European Convention on the Adoption of Children (1967)
II. Recommendations and a resolution from the Committee of Ministers
• Recommendation Rec(2006)12 on empowering children in the new information and communications environment
• Recommendation Rec(2006)5 on the Council of Europe Action Plan to promote the rights and full participation of people with disabilities in society: improving the quality of life of people with disabilities in Europe 2006-2014
• Recommendation Rec(2006)1 on the role of national youth councils in youth policy development
• Recommendation Rec(2005)5 on the rights of children living in residential institutions
• Recommendation Rec(2004)13 on the participation of young people in local and regional life
• Recommendation Rec(2003)20 concerning new ways of dealing with juvenile delinquency and the role of juvenile justice
• Recommendation Rec(2002)8 on child day-care
• Recommendation Rec(2002)5 on the protection of women against violence
• Recommendation Rec(2001)16 on the protection of children against sexual exploitation
• Recommendation Rec(2001)10 on the European Code of Police Ethics
• Recommendation Rec(2000)11 on action against trafficking in human beings for the purpose of sexual exploitation
• Recommendation No. R(98)8 on children's participation in family and social life
• Recommendation No. R(97)19 on the portrayal of violence in the electronic media
• Recommendation No. R(97)13 concerning intimidation of witnesses and the rights of defence
• Recommendation No. R(94)14 on coherent and integrated family policies
• Recommendation No. R(93)2 on the medico-social aspects of child abuse
• Recommendation No. R(91)11 on sexual exploitation, pornography and prostitution of and trafficking in, children and young adults
• Recommendation No. R(91)9 on emergency measures in family matters
• Recommendation No. R(90)2 on social measures concerning violence in the family
• Resolution ResAP(2005)1 on safeguarding adults and children with disabilities against abuse
III. Recommendations and resolutions from the Parliamentary Assembly
• Recommendation 1703 (2005) on protection and assistance for separated children seeking asylum
• Recommendation 1698 (2005) on the rights of children in institutions: follow up to recommendation 1601 (2003) of the Parliamentary Assembly
• Recommendation 1666 (2004) on a Europe-wide ban on corporal punishment of children
• Recommendation 1596 (2003) on the situation of young migrants in Europe
• Recommendation 1632 (2003) on teenagers in distress: a social and health-based approach to youth malaise
• Recommendation 1601 (2003) on improving the lot of abandoned children in institutions
• Recommendation 1561 (2002) on social measures for children of war in South- Eastern Europe
• Recommendation 1555 (2002) on the image of women in the media
• Recommendation 1551 (2002) on building a 21st century society with and for children: follow-up to the European strategy for Children (Recommendation 1286
• Recommendation 1545 (2002) on a campaign against trafficking in women
• Recommendation 1532 (2001) on a dynamic social policy for children and adolescents in towns and cities
Recommendation 1526 (2001) on a campaign against trafficking in minors to put a stop to the east European route: the example of Moldova
• Recommendation 1523 (2001) on domestic slavery
• Recommendation 1501 (2001) on parents and teachers' responsibilities in children's education
• Recommendation 1459 (2000): Action plan for the children of Kosovo
• Recommendation 1449 (2000) on clandestine migration from the south of the Mediterranean into Europe
• Recommendation 1443 (2000) on international adoption: respecting children’s rights
• Recommendation 1398 (1999) on the situation of children in Albania
• Recommendation 1371 (1998) on abuse and neglect of children
• Recommendation 1336 (1997) on combating child labour exploitation as a matter of priority
• Recommendation 1286 (1996) on a European strategy for children
• Recommendation 1121 (1990) on the rights of children
• Resolution 1337 (2003) on migration connected with trafficking in women and prostitution
• Resolution 1307 (2002) on sexual exploitation of children: zero tolerance
Resolution 1291 (2002) on international abduction of children by one of the parents
• Resolution 1247 (2001) on female genital mutilation
• Resolution 1215 (2000) on the campaign against the enlistment of child soldiers and their participation in armed conflicts
• Resolution 1212 (2000) on rape in armed conflicts
• Resolution 1099 (1996) on the sexual exploitation of children
IV. Recommendations and resolutions from the Congress of Local and
Regional Authorities of the Council of Europe
• Recommendation 135 (2003) on local partnerships for preventing and combating violence at school
• Recommendation 53 (1999) on policies for deprived children/adolescents and families
• Resolution 160 (2003) on local partnership for preventing and combating violence at school
• Resolution 74 (1999) on policies for deprived children/adolescents and families
Legal texts under preparation which concern children are:
• a convention and a recommendation on the protection of children against sexual exploitation and abuse;
• a recommendation on positive and non-violent parenting;
• a recommendation on empowering children in the new media environment;
• standards for the protection of children from harmful content in the media and other information services;
• a recommendation on the participation of young people from minorities;
• a recommendation containing European rules for juvenile offenders deprived of their liberty or subject to community sanctions or measures;
• a revised European Convention on Adoption;
• a Council of Europe charter on citizenship and human rights education.
The Parliamentary Assembly of the Council of Europe also adopts recommendations, resolutions and opinions concerning children’s rights. The following reports are under preparation in its committees and may lead to the adoption of important texts:
• report on promoting the involvement of children in decisions concerning them;
• report on the implementation of legal and other tools useful for fighting against violence and other forms of child exploitation and abuse;
• report on Aids orphans and vulnerable children;
• report on the health and welfare situation of children living in conflict or post-conflict zones in Europe;
• report on child and teenage suicide in Europe: a serious public health issue;
• report on preventing the first form of violence against children: abandonment at birth.
i. European Social Charter 1996 - Revised (CETS No.: 163)
This instrument places more emphasis on the right of children to special protection. It declares that children have a right to social, legal and economic protection, without saying anything of the right for the child to access to these rights himself/herself.
ii. European Convention on recognition and enforcement of decisions concerning custody of children and on restoration of custody of children 1983(CETS No.: 105)
Coming into force, some years before the CRC, this Convention states that before reaching a decision the authority concerned shall ascertain the child's views unless this is impracticable having regard in particular to his age and understanding.
iii. Convention on contact concerning children 2003 (CETS No.: 192)
This Convention contains a specific article on the right of the child to be informed and to express his/her views. It contains the rights of the child to be informed, to be consulted and to express his/her views. Reflecting the European Convention on the Exercise of Children's Rights it states that the child is entitled to these rights if the child considered by internal law as having sufficient understanding. The child must be given all the relevant information especially when the child does not have a special representative and the judicial authority has reason to believe that the holders of parental responsibilities have not given this information to the child. This information must be transmitted to the child in a form which accords with his/her particular age and understanding. Due weight must be then given to the wishes and feelings of the child. However the final decision is always in the hands of the judicial authority.
iv. Draft European Convention of the Council of Europe on the adoption of children 2007 (revised)
This Convention recognises the right of the adoptee (child) to be provided with relevant information to enable such rights and best interests to be promoted and that due weight should be given to the views of children (emphasis added). And again this Convention reflects the CRC and the European Convention on the Exercise of Children's Rights. States should undertake to seek the consent of the child where the latter is deemed to have sufficient understanding. However it might be criticized when it specifies that the age of understanding prescribed by law “shall not be more than 14 years”. This is quite a high age limit; the legislations of many Member States set the child’s age of understanding at an earlier age however this article therefore seems framed in broad enough terms to permit compliance by all Member States.
v. Council Resolution (77) 33 on placement of children (1977)
Before deciding on the placement of the child, this recommendation deems it necessary that for this to reflect the best interests of the child, where appropriate, his/her personal views on the matter should be heard. It specifies that the procedure, organisation and individual care plan of the placement, shall guarantee the rights of the child, notably the child’s right to be heard; due weight should be given to these views in accordance with the child’s age and his/her degree of maturity. It is also interesting to note how this resolution states that the child has the right to be informed about children’s rights and the rules of the residential institution in a child-friendly way. The child also has the right to make complaints to an identifiable, impartial and independent body in order to assert children’s fundamental rights. These are ways how the child is given access to justice.
vi. Recommendation No. R (87) on foster families
Similarly this recommendation declares that before any decision is taken with regards to the foster family the child must be consulted if his degree of maturity with regard to the decision so permits.
vii. Recommendation No. R (2005)5 on the rights of children living in residential institutions then states the same principles of taking into account the views of the child before placement and even during the periodic reviews of placements and the right to be informed and participate in decision-making processes concerning the same child and the living conditions in the institution, and the right of the child to make complaints.
viii. Recommendation No. R (85) 4 on violence in the family
This Recommendation places emphasis on alerting the general public to the extent, seriousness and specific characteristics of violence in the family with a view to obtaining its support for measures aimed at combating this phenomenon but does not stipulate any specific measures with regards to children’s access to justice if they are experiencing violence in their families.
ix. Recommendation No. R (91)9 on emergency measures in family matters
This Recommendation imposes on Member States to take all necessary steps to implement effective emergency measures available to the courts and other competent authorities dealing with family matters to protect children and other persons who are in need of special protection and assistance and whose interests are in serious danger. It establishes that simple and expeditious procedures should be available to ensure that decisions are reached very quickly but does not specify whether children can lodge such complaints or that Member States should make known this procedure to children.
x. Recommendation No. R (98)1 on family mediation
This recommendation calls for the mediator to place special attention to the welfare of the child and the need of the child to be consulted on the matters being discussed.
Various recommendations on the issue followed:
xi. Recommendation Rec(2002)10 on mediation in civil matters
xii. Recommendation Rec(99)19 concerning mediation in penal matters
xiii. Recommendation Rec(2001)9 on alternatives to litigation between administrative authorities and private parties,
A Working Group on Mediation (CEPEJ-GT-MED was then set up to gauge the impact in Member States of the above recommendations of the Committee of Ministers and to recommend specific measures for facilitating their effective implementation, thus improving implementation of the mediation principles contained in these recommendations. It is recommended that ‘Member States and other bodies involved in family mediation work together to establish common valuation criteria to serve the best interest of the child, including the possibility for children to take part in the mediation process. These criteria should include the relevance of the child’s age or mental maturity, the role of parents and the nature of the dispute. This could be facilitated by the Council of Europe in co-operation with the European Union.’
xiv. Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000
The preamble itself states that ‘The hearing of the child plays an important role in the application of this Regulation, although this instrument is not intended to modify national procedures applicable.’ A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard. And one of the grounds of non-recognition for judgments relating to parental responsibility is:
‘if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the Member State in which recognition is sought.’ Similarly the 1996 Hague Convention on International Child Protection in Chapter IV is about Recognition and Enforcement, recognition may be refused if the measure was taken, except in a case of urgency, in the context of a judicial or administrative proceeding, without the child having been provided the opportunity to be heard, in violation of fundamental principles of procedure of the requested State.
xv. EU Convention on the Repatriation of Minors, Council of Europe, The Hague, 28 May 1970
Although concluded in 1970, this Convention states that no decision shall be taken concerning a request for repatriation until the minor, if his capacity for discernment allows, has been heard in person by a competent authority in the requested State.
xvi. Council of Europe Convention on Action against Trafficking in Human Beings (2005)
This Convention provides that as soon as an unaccompanied child is identified as a victim, each State Party shall, amongst other requirements, provide for representation of the child by a legal guardian, organisation or authority which shall act in the best interests of that child. In this way the child’s voice is heard in the proceedings with the help of the legal guardian who in the circumstances is more appropriate than might be direct contact of the child with the authorities.
It also places a duty on State Parties to provide the victims, (who may be children) with counseling and information, in particular as regards their legal rights and the services available to them, in a language that they can understand. It speaks about victims in general and says that each State Party shall ensure that services are provided on a consensual and informed basis, taking due account of the special needs of persons in a vulnerable position and the rights of children in terms of accommodation, education and appropriate health care. Each State Party is to adopt the necessary legislative measures to ensure that in the course of judicial proceedings child victims are taken special care of.
xvii. Recommendation No. R(98)8 on children's participation in family and social life
This Recommendation specifically declares the importance of children's participation. It acknowledges that children are ‘full members’ of society. It recognises the importance of participation in different areas of society. It also stresses the importance of making information on participation available and accessible, in particular information on different forms of participation and related legal instruments.
xviii. Recommendation R (2004)13 on the participation of young people in local and regional life
This recommendation promotes the participation of the child in all areas of local and regional life and the importance of information. In this way young people can be informed of their rights and in this context, of the way they can access justice.
xix. Recommendation No. R(93)2 on the medico-social aspects of child abuse
This recommendation gives importance to the right of information in that it emphasizes the need that children are informed of the nature of their concerns, of their rights and of the actions which will be taken to investigate the concerns. In this way children can seek to access their rights. It also seeks to ensure that children are appropriately represented and that their views are sought and taken into account, having regard to their age and understanding.
It even goes further to say that Member States should establish policies that guarantee that judicial or administrative decisions taken promote the child's welfare and development and are made with all reasonable speed to a time-scale consistent with the child's needs and understanding. For meaningful participation in court proceedings, professionals involved in the investigation and assessment of child abuse, in intervention and therapy with abused children, their families or abusers and in civil or criminal legal proceedings in connection with child abuse must be fully trained and appropriately experienced.
xx. Recommendation 1596 (2003) on the situation of young migrants in Europe
Recommendation 1596 established that all Council of Europe Member States should adopt a legal framework for the appointment of a legal guardian for separated children who are under their jurisdiction, irrespective of whether they apply for asylum or not. It also specifies how this guardian should be chosen and when he/she should be appointed. The child should be part of the return procedure and the decision to return a separated child should be reasoned and notified to the child and his/her legal guardian in writing, together with information on how to appeal against it. Furthermore the child and/or his/ her legal guardian should have the right to lodge an appeal before a court against the decision to return. Such an appeal should have suspensive effect and be extended to the lawfulness and the merits of the decision.
xxi. Recommendation 1703 (2005) on protection and assistance for separated children seeking asylum
This recommendation states that a number of provisions relating to the rights of the child found in the CRC are often neglected when it comes to implementing asylum measures one of which is the right for the child to be consulted on all matters that may affect him or her (Article 12). The recommendation stresses that a legal guardian should be appointed immediately for these separated children seeking asylum to defend their interests and ensure their well-being.
xxii. Recommendation 1532 (2001) on a dynamic social policy for children and adolescents in towns and cities
The Committee of Ministers focused its work to promote children’s interests in the Council of Europe Programme for Children which involved children on an equal basis with adults, by providing them, through the Forum for Children, with a platform that enabled them to have their say on issues that concern them. This
Forum has evolved into the Forum for Children and Families, which reports to the European Committee on Social Cohesion (CDCS) on issues concerning children and families and their living environment. Participation of children is one of the subjects on which the Forum focused.
xxiii. Recommendation 1286 (1996) on a European strategy for children
The Assembly recommends that the Committee of Ministers urge the Member States of the Council of Europe to ratify the various legal instruments on the Rights of the Child if they have not already done so. It also suggests that the states grouped together in the Council of Europe make children's rights a political priority by (amongst other points)
1. informing children about the means and remedies available to them in the event of violation of their fundamental rights and, for example, to extend the provision of free help-lines, specialist advocates and child friendly judicial and administrative systems which recognise the claims of individual children for protection against all forms of abuse. This contributes towards empowering children to access justice;
2. providing specific training in children's rights for all professionals who come into contact with children, including teachers, the various members of the judicial authorities, social workers, etc;
3. enabling the views of children to be heard in all decision-making which affects them, and to enable them to participate actively, responsibly and in a manner appropriate to their capacity, at all levels of society including in judicial hearings.
The following legal instruments all stress the importance of appointing an ombudsman for children to inform them about their rights in each specific area dealt by each recommendation and to promote information programs and preventive measures for children
xxiv. Recommendation 1121 (1990) on the rights of children
xxv. Resolution 1307 (2002) on sexual exploitation of children: zero tolerance
xxvi. Recommendation Rec(2001)16 on the protection of children against sexual exploitation
xxvii. Resolution 74 (1999) on policies for deprived children/adolescents and families
This resolution also adds the importance of providing for special court protection and special proceedings for minors (setting up of youth courts, special criminal laws for young people, etc).
xxviii. Resolution 1099 (1996) on the sexual exploitation of children
xxix. Recommendation 53 (1999) on policies for deprived children/adolescents and Families
xxx. Conclusions of the Conference on “International justice for children”, Strasbourg (17-18 September 2007)
Resolution MJU-28 (2007) No. 2 on child-friendly justice
Acknowledges the need that children have effective access to remedies in order for their rights to be fully implemented. It emphasizes the need of the child to effectively participate in proceedings affecting him/her. Appropriate judicial procedures must be established to secure efficient access for the child to judicial procedures. ‘Specially trained persons’ must also be present to help the child access to the procedures.
It invites the Committee of Ministers to entrust the European Committee on Crime Problems (CDPC), the European Committee on Legal Co-operation (CDCJ), the Steering Committee for Human Rights (CDDH) as well as the European Commission for the efficiency of justice (CEPEJ) in co-operation with other competent bodies of the Council of Europe, to:
a. examine the access and the place children have prior to, during and after judicial proceedings;
b. examine the way in which the views of children can be taken into account during such proceedings;
c. examine ways of improving the manner in which authorities provide information to children on their rights and access to justice, including to the European Court of Human Rights;
d. gather information on child-friendly procedures implemented in Member States;
e. prepare elements for European guidelines for child-friendly justice.
xxxi. Conventions: ECHR, ECRC, Reference to Hague
Section 1.01 European Convention on the Exercise of Children’s Rights 1996
The scope of this Convention is to promote children’s rights, to grant them procedural rights and to facilitate the exercise of these rights by informing children themselves and allowing them to express their views in proceedings affecting them before a judicial authority. The Convention leaves it up to the Member States to decide in what way children's views are determined and presented to the court. The ultimate decision that the state makes on the issue to which the child gives a view will be discretionary.
The ECECR’s conditions of ratification state that a State Party chooses at least three categories of family proceedings to which the Convention will apply. This allows States Parties to selectively and inconsistently grant the rights bestowed by the Convention. The term ‘categories’ can be interpreted in a number of ways and this lack of guidance in the Convention has led to glaringly different interpretations59: Germany offers twenty-three highly specific ‘categories’ (e.g., withdrawal of custody of a guardian or a curator in respect of the religious education of the ward or the person in the guardian’s or curator’s charge), while the Czech republic offers only three general ‘categories’ (e.g., adoption proceedings) and an umbrella provision that the Convention apply ‘to any other family proceedings affecting the rights of the child.’60
xxxii. Convention on the Rights of the Child 1989
It was the Convention on the Rights of the Child 1989 (CRC) that marked a turning point in the history of the rights of the child as the child was prior to this Convention, primarily seen as an object in the hands of the pater, in need of protection and care. The CRC altered this perception in that the child is now seen as a separate individual with own rights, interests and wishes which might not always coincide with those of his/her parents. However there remains the need to provide the tools necessary to the child to enforce these rights. Finalised in 1989, the CRC has been described as a ‘landmark in the history of childhood’61.
[xxxiii. The Declaration of the Rights of the Child (Geneva, Council of the League of Nations Assembly, Geneva, March 1924)
The Declaration was the first document to formally affirm the notion of children’s rights. It recognized that mankind owes to the child the best it has to give. It does not place obligations upon the States, it just declares the rights. At this stage, the child was seen as the recipient rather than the holder of the listed rights. It was still significant in that it lay down the basis for future international standard setting in the field of children’s rights
[xxxiv. Universal Declaration of Human Rights 1948
The Declaration pronounces the right of the child to special care and assistance and it provides this through the direct protection of the rights of the child and indirectly through the protection of motherhood. The second specific mention to children is contained in Article 26 which declares the right to education.
[xxxv. Declaration on the Rights of the Child, General Assembly of the UN 20 November 1959 The Declaration builds on the Geneva declaration and recognizes, with reference to the Universal Declaration of human rights that children too ‘share in the claims to human rights set forth in that document’. The preamble refers to ‘special safeguards and care, including appropriate legal protection’ needed by children. It enshrines the principle that children are in need of special protection, however in this instrument children begin to emerge as subjects of international law, rather than passive recipients, who are able to ‘enjoy the benefits of’ specific rights and freedoms.
[Following, there were a number of instruments which in various ways dealt with children’s right to protection in different areas but which though concerning children and their rights, do not include child friendly procedures by which the child’s voice can be heard:
· Convention Concerning the powers of authorities and the law applicable in respect of the protection of infants. Commission Internationale de l’Etat Civil, The Hague, 5 October 1961
· Convention on the extension of the competence of authorities qualified to receive acknowledgements of children born out of wedlock. Commission Internationale de l’Etat Civil, Rome, 14 September 1961
· Convention concerning the establishment of maternal filiation of children born out of wedlock. Conférence Internationale de l’Etat Civil, Brussels, 12 September 1962
· Convention of Legitimation by marriage, Commission Internationale de l’Etat Civil Rome, 10 September 1970
· Convention on the Voluntary acknowledgement of children born out of wedlock, Commission Internationale de l’Etat Civil, Munich 5 September 1980
· Convention on the recognition and enforcement of decisions relating to maintenance obligations. The Hague, 2 October 1973
· 1988 UN High Commissioner for Refugees Guidelines on Refugee Children
xxxvi. 1980 Hague Convention on the Civil Aspects of International Child Abduction
Article 13 states that a State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. Therefore the child is given the opportunity to access justice as the Convention places an obligation on the authorities to hear the voice of the child.
xxxvii. Declaration on Social and Legal Principles Relating to the Protection and welfare of Children, with special reference to foster placement and adoption nationally and internationally. General Assembly of the UN New York, 3 Dec 1986
This instrument declares the right of the child to legal representation and the voice of the child is therefore heard through this filter. However, contrary to later instruments on the subject, consent of the child is nowhere mentioned.
xxxviii. 1993 Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption
Lists as one of the requirements for an adoption within the scope of the Convention to take place that the competent authorities of the State of origin have ensured, having regard to the age and degree of maturity of the child, that
(1) he or she has been counseled and duly informed of the effects of the adoption and of his or her consent to the adoption, where such consent is required,
(2) consideration has been given to the child's wishes and opinions,
(3) the child's consent to the adoption, where such consent is required, has been given freely, in the required legal form, and expressed or evidenced in writing, and
(4) such consent has not been induced by payment or compensation of any kind.
It also ensures that the adoptee is consulted where the adoption is to take place after the transfer of the child to the receiving State and it appears to the Central Authority of that State that the continued placement of the child with the prospective adoptive parents is not in the child's best interests.
* 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.
(2) For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
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  3 All ER 402
24 Re S.  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  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
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.
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  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