Children’s Access to and Participation in the Justice System in Light of National Characteristics

Summary

‘Your children are not your children, they are the sons and daughters of life‘s longing for itself.’

Khalil Gibran, The Prophet

INTRODUCTION

The adoption of the Convention on the Rights of the Child (CRC) represents a historic moment for children, particularly in respect to their access to and participation in the justice system. Adopted on 20 November 1989, the CRC came into effect less than one year later, and at present constitutes the most ratified human rights treaty in history. Throughout its 54 articles, it sets itself the objective that, ‘the child should be fully prepared to live an individual life in society’ , by incorporating to that purpose measures of both enfranchisement and protection concerning them.

The essential points of the philosophy of this binding instrument are summarized in its Article 12.1, which specifies, ‘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 aff ecting the child, …’. Its other provisions articulate various rights of the child – in particular those dealing with the administration of justice:

– Article 12.2 states that the child ‘… shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings aff ecting the child, …’.

– Article 37 insists that deprivation of liberty must be ‘in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time’. Minors are to be treated humanely during this period and be able to readily access assistance, in particular, legal assistance.

– Article 40 emphasizes the right for the child to a particular justice.

If indeed there is a very broad consensus for considering access to and participation in the justice system on the part of the child as a major concern internationally, nevertheless it is not inappropriate to consider whether beyond declarations and official positions, this fundamental right is perceived and implemented in the same way irrespective of a country‘s political regime, economic level, security situation, and cultural specificities.