Creating a child friendly justice system
Published 28/02/2019 by Christian Gunther
The LASPO Post Implementation Review highlighted the welcome reintroduction of legal aid for unaccompanied migrant children. Now we examine what positive steps could follow to ensure that the rights of all children are safeguarded.
The reintroduction of legal aid for unaccompanied migrant children is a significant example of recent efforts that highlight the need for ensuring that children have adequate access to justice. As a result some of the most vulnerable and marginalised children will now have access to the advice and representation they need to navigate their way through the complexities of the UK immigration system.
This is a welcome development, but also invites us to consider how the position of these - and indeed of all children who interact with the law - can be improved further. How can we create a child-friendly justice system
The necessity of this should be apparent when we remind ourselves that
“when faced with the justice system, children are thrown into an intimidating adult world which they cannot understand”.
Taking this approach would also ensure that the UK complies with its obligations under article 12 of the United Nations Convention on the Rights of the Child, which grants children the right to participate in judicial proceedings and to be heard in them.
It is in this light of this that the Council of Europe commissioned a report that aimed to draw together the views and priorities of children from across Europe to influence its Strategy for the Rights of the Child 2016-2021. This has revealed a number of thoughtful and insightful recommendations that we think should be taken to heart in shaping the way in which children interact with the law going forward.
While it is certainly worth looking at the report in full, a few key insights can be summed up under the heads of three overlapping categories: increasing children’s understanding of the law, interacting with them effectively and enabling their participation in the legal process.
Regarding understanding, it is notable that the report indicates that many children wished to be better informed about their legal rights and for proceedings to be conducted in a way that they can understand. They also noted that one helpful approach in helping them understand would be to involve those close to them, such as friends and family. Consequently there “is a need for authorities to enhance their engagement with parents and others close to children in order to ensure that families are open about legal matters” and, conversely, to minimise the reliance of children on sources that they did not find attractive, such as hotlines and officials.
This leads on to the second matter, of effectively shaping how officials such as lawyers and judges interact with children. The children questioned believed that such individuals should be especially trained to work with them and that meaningful contact between them and the children should be facilitated, with the adults listening to their views. In this vein, one particular concern of many children was to be able to speak to the decision-maker before a decision was made on their case. Similarly, such individuals should also take care how they interact with children and conduct their proceedings. If possible, the use of complex language should be avoided as this can be especially alienating for children and care should be taken to adequately inform and prepare children for hearings, so that they are not unnecessarily anxious or nervous.
The last insight concerns the wish of children to be heard and to have the ability to influence the outcome of the decision. In relation to this, two recommendations appear particularly relevant. First, “a wide range of mechanisms should be developed to allow children to express their views creatively in ways that suit their capacities and interests”. This, in addition to some of the reforms examined above, would ensure that the views of children can be conveyed to those dealing with their case. Second, not only should the contribution of children to the court process be possible, but it is also important that there is a perception that it is effective. Therefore, participation should be welcomed and, after the proceedings, children should be clearly informed about the effect of their participation.
We have recently seen the Judiciary in particular being praised for writing judgements with children in mind to ease their understanding of what their decisions mean and why they came to those conclusions. We hope that the reintroduction of legal aid for unaccompanied migrant children will stimulate a discussion on how to optimise the degree to which all children are guaranteed access to justice and the protection of their rights in our system.