Justice for children encompasses legal measures to protect their rights and welfare, extending beyond criminal contexts. It includes principles of child-friendly justice from international standards, covering non-criminal court proceedings, such as public law cases involving local authorities and private law cases within family life. Key reasons for children’s interaction with the justice system include divorce, adoption, nationality, immigration, care needs, criminal involvement, education, discrimination, sexual offenses, clinical negligence, and mental health.
What is justice for children?
The term justice for children is more commonly used in a legal context, and refers to the desire to ensure all children, irrespective of their status, are served by the justice system in their best interest and in accordance with international rules and standards. This definition includes instances in the criminal domain – where children come into contact with the justice system due to a crime – as well as infringements on children’s rights outside of the criminal realm – such as adoption proceedings.
Child justice should not be curtailed or limited by domestic legal provisions. Given the breadth of the term, international child justice principles are codified across a number of international standards and guidelines including the UN Convention on the Rights of the Child (CRC), the UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) and the UN Rules for the Protection of Juveniles Deprived of their Liberty (Havana Rules), among others.
Two types of childcare proceedings
There are several reasons as to why children can be subjected to non-criminal court proceedings. These court proceedings will determine where children should live, who has parental responsibility for the child or who the child is able to have contact with (Martin, 2018). There are two types of legal orders:
Public law
Public law cases relate to court proceedings where a local authority has made an application expressing concern about the lack of care a child (or children) are receiving. During these cases, a social worker is allocated to the children (Martin, 2018). Examples of public law cases include:
Care orders
A care order is applied on behalf of a child by a local authority. There are two types of care orders: interim care orders or final care orders. Once a care order is in place, the local authority has parental responsibility and must determine the future of the child and where the child will live. The order lasts until the child is eighteen years old, however, it can be revoked by the courts. Under a care order, a child is considered “looked after” by the local authority (Martin, 2018).
Supervision order
A supervision order requires the local authority to allocate a social worker to advise, assist and befriend the child to provide them with support. In these cases, the local authority does not have parental responsibility. The orders are initially for a one-year period but can be extended to no more than two years, however, the court has the power to stop the order sooner. This order signifies that there has been serious concerns regarding a child’s welfare, however the child is not considered a child that is “looked after.” (Martin, 2018).
Adoption order
An adoption order, applied for by the adopters and not the local authority, transfers parental responsibility to the adopters. Once in effect, the child assumes the adoptive family’s name and legal privileges as though they were born into that family. Adoption order last for the duration of the child’s life and are not usually reversible (Martin, 2018).
Emergency protection order
An emergency protection order allows the local authority to remove a child from their home if they feel the child is at risk of significant harm. This order can last up to eight days and can only be extended for an additional seven days (Martin, 2018).
Private law
Private law cases relate to court proceedings where a person has taken a particular issue to court, regarding a matter within their private family life. These cases do not always involve a local authority (Martin, 2018). Examples of private law cases include:
Child arrangements order
Child arrangement orders determine the living and contact arrangements for the child. Whoever the court determines that the child should live with, gains parental responsibility for the duration of the child’s order. Contact with a child can be either direct or indirect.
Direct contact refers to contact that is face-to-face, in-person or online. Indirect contact refers to contact that is through the exchange of letters (Cafcass, n,d). This order is usually in force until the child has reached the age of sixteen, after which the child will decide how much contact they want, however, they are only able to decide where they want to live once they reach the age of eighteen 18 (Martin, 2018).
Parental responsibility order
A parental responsibility order defines all rights, responsibilities and duties a parent has toward their child. Birth mothers automatically have parental responsibility, unless removed through an adoption order. In cases where the father and mother are married to each other at the time of the child’s birth, both parents have parental responsibility.
In cases where the father and mother are unmarried, the father can obtain parental responsibility by marrying the mother, a court order or signing a parental responsibility agreement (Cafcass, n,d). Parental responsibility includes making decisions regarding where a child goes to school, choosing their name, giving consent to medical treatment and having access to a child’s medical records, the ability to take a child on abroad for holidays and representing a child in legal proceedings (Coram, n,d).
Residence order
A residence order is a court order that determines who the child will live with but not where the child will live. Whoever the court determines the child will live with, will have parental responsibility for the child until the child is 16 years old (Martin, 2018).
Reasons children come into contact with the justice system
Children can come into contact with the justice system as a result of their own actions, or the actions of people around them. Common drivers of child interaction with the justice system include:
- Divorce – formal marital separations can bring children into contact with the justice system, particularly when parents and guardians debate parental and child supervisory rights. Despite general decreases in divorce, global research on divorce perceptions illustrates a rise in internet searches for the word ‘divorce’ across the globe, including in the Philippines, where divorce is illegal (Advokatsmart, 2024).
- Adoption – adoption is the formal legal process which enables the transfer of parental responsibility from birth parents to adoptive parents. Children’s best interests are actively considered during adoption procedures as part of fair treatment and justice principles.
- Nationality – the acquisition of nationality is a formal process tied to the registration of children at birth. Children who are not registered at birth, have their registration details stolen or lost (such as refugees fleeing conflict or natural disasters) or who experience complexities tied to their registration are forced to access the justice system.
- Immigration – the voluntary or forced migration of children across borders and into new territories brings them into direct contact with the justice system. Children require formal support to gain legal residency rights and permissions.
- Care or safety needs– children who are at risk of violence, abuse or neglect may turn to the justice system for protection and safety. Police helplines, social services and other quasi-law enforcement agencies exist to protect children from harm.
- Criminal involvement– children who have been involved in criminal incidents are likely to interact with law enforcement and legal actors as part of criminal justice procedures.
- Education or special needs/disabilities – children with special needs or disabilities may turn to the justice system for support. Children with disabilities in education, for example, may require formalised support to guarantee non-discrimination and reach their full potential.
- Discrimination – children may turn to the justice system to seek redress when they have been discriminated against, or may experience discrimination while within the justice system itself. Recent research demonstrates that societal inequities can disproportionally drive marginalised children towards the justice system and increase their likelihood of experiencing unfair treatment while within it (Barnardo’s, 2023).
- Sexual offences – children who have perpetrated or been victims of sexual offences come into direct contact with the criminal justice system as a part of investigative and legal proceedings, but also require further support outside of that system to ensure they are adequately supported.
- Clinical negligence, health care – children who have been party to incidents involving clinical negligence and negligent health care provision are likely to come into contact with the justice system to ensure they are safeguarded against further harm and supported.
- Mental health – children suffering mental health challenges are often provided with pathways to better mental health through the justice system.
Examples of child-friendly justice
Child-friendly justice principles are codified in various regional and international instruments. In the context of Europe, the Council of Europe’s guidelines list a series of principles for states to adhere to when thinking about child justice (European Court of Human Rights, 2024). Both the Inter-American Commission on Human Rights and the African Union (through its Charter on Rights and Welfare of the Child) contain guidance on dealing with children in justice proceedings.
At an international level, the United Nations has published rules and guidelines on juvenile justice, juvenile delinquency and deprivation of liberty, criminal matters involving child victims and witnesses and alternative care among others (Child Rights International Network, 2024). Further, in a Guidance Note published by the Secretary-General in 2008, the United Nation presented nine guiding principles on ensuring justice for children (United Nations, 2008).
It is notable that the majority of existing guidelines centre on child justice in the criminal justice system, with little published content on standardising justice principles for children in non-criminal context. Irrespective of the context, there are some common principles that span international and regional instruments which should be adhered to in order to realise justice for children. These are presented below with examples from different regional arbitrators.
Best interests of the child as the primary consideration
Child-friendly justice must be centred around the best interests of the child and should prioritise this over all other considerations. In a 2018 German case (Tlapak and Others v. Germany), the European Court of Human Rights (ECHR) prioritised the best interests of a group of children who were experiencing caning within a German Church, marginalising the interests of their parents who believed corporal punishment of this kind was acceptable (European Court of Human Rights, 2024).
The right of the child to express his/her views freely and to be heard
Children have the right to be heard and to express their views during all justice proceedings, irrespective of their age and communication skills. Failure to give children the opportunity to be heard risks undermining their best interests. In the 2015 Croatian case of M. and M. v. Croatia, the ECHR stated that a 4-year custody hearing was unlawful as it failed to give a 13-year-old child the opportunity to be interviewed or to express their views in court during legal proceedings (European Court of Human Rights, 2024).
Speedy hearings and trials
Child justice must be delivered swiftly, reducing the time that children are exposed to harm or uncertainty. In the Brazilian “Tatuape Compound” case judges from the Inter-American Court on Human Rights (IACHR) mandated that urgent measures be implemented to protect adolescents residing in an area that had grown increasingly dangerous (Inter-American Commission on Human Rights, 2008).
Equal treatment, free from discrimination
Children within the justice system must be treated fairly and equally, irrespective of their physical or personal characteristics. Unfortunately, due to preexisting biases, children are treated unfairly in the same way that adults are. In the 2017 case of Talpis v. Italy, the ECHR noted that a woman had been the victim of discrimination in the justice process due to the fact that authorities had underestimated the violence she experienced due to her gender (European Court of Human Rights, 2024).
Accessible to children
Justice systems are often inaccessible for children who lack the means to access legal support, without knowledge of their rights. Particularly this can be seen impacting vulnerable children, minority children, migrant children, children with disabilities and children in jail/detention centers. The African Commission supports children to access justice pathways by enabling citizens, individuals and NGOs to report child mistreatment on their behalf (Council of Europe, 2024).
Age appropriate
Child justice mechanisms must be developed for children, with their best interests in mind. Taking an adult criminal justice procedure and implementing it into a children’s rights context risks undermining and overlooking the particularities of children’s vulnerabilities.
Diligent
Actors working within the justice chain must be detailed and thorough in their assessment of potential children’s rights violations, and their treatment of children who are victims of harm. In 2008 the IACHR ruled that Guatemala had failed to protect children from forced disappearance and, beyond the individual harm suffered, ordered the country to establish an educational centre on children who disappeared during the country’s armed conflict (Inter-American Commission on Human Rights, 2008).
Adapted and focused to the needs of children
Criminal justice systems are often not equipped to support children. Justice professionals frequently lack specialised training and revert to treating children like adults, subverting the justice process and ignoring children’s inherent vulnerability. In the 2021 case of A.P. v. the Republic of Moldova, a twelve-year-old boy was accused of sexually abusing a five-year-old. During the investigative process, the accused child was not accompanied by a welfare assistant, psychologist or other specialist, breaching Council of Europe guidelines (European Court of Human Rights, 2024).
Respecting the right to participate in and understand the proceedings
In addition to the right to be heard and be presented with accessible criminal justice mechanisms, children have a right to be informed of proceedings and given an opportunity to participate. This requires states to develop mechanisms to communicate with children throughout justice decision-making processes.
Respecting the right to private and family life
National bodies must do everything in their power to protect the privacy of private family life, and preserve children’s home environments as this is in their best interests. This right is enshrined in numerous international human rights conventions and extends towards children.
Respecting the right to integrity and dignity
Children must be treated with dignity during all criminal justice proceedings. This includes respecting their vulnerability as children, while acknowledging their value as human beings. This can include requirements for states to conduct full and thorough investigations into allegations of abuse, rather than undermining them.
Practical advice for stakeholders on implementing child-friendly justice
The United Nations promotes and advocates for states to implement a series of measures to build a robust framework to ensure justice for children. These recommendations include (United Nations, 2008):
Policymakers
- Ensure laws and policies are drafted and implemented in line with UN norms and standards and international human rights principles.
- Ensure policies are specifically drafted to guide personnel working within the justice chain on ways to interact with children who come into contact with justice processes.
- Ensure adequate resource is provided to national institutions to enable them to develop capacity and skills to protect children and ensure just outcomes.
- Implement monitoring and accountability processes to ensure staff coming into direct contact with children are required to consistently meet high standards.
- Develop and maintain reliable data on children’s experiences within the justice system.
- Implement educational campaigns to raise awareness of children’s rights in relation to the justice system, both within school curricula and broader to ensure adults are sensitised on the importance of justice for children.
Legal actors
- Develop and maintain capacity to implement specialised procedures and practice in all hearings that involve children, centering outcomes on the principle of the best interests of the child.
- Establish a pathway for the development of specialised legal professionals with knowledge of children’s rights issues and vulnerabilities.
Civil society
- Support governments to advocate for justice for children, raising awareness through child-centric processes that involve children as much as is possible.
- Run programmes on justice for children in conflict and other chaotic environments in which governments are temporarily unable to dedicate resource to safeguarding children.
Written by Vanessa Cezarita Cordeiro
Internally proofread by Aditi Partha
Last updated on 6 May 2024
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