Access to justice is the cornerstone of a fair and equitable society, underpinning the principle that every individual has the right to seek and obtain a remedy through formal or informal institutions of justice for grievances in compliance with human rights standards.[1] It is no wonder then that it is central to Goal 16 of the United Nations Sustainable Development Goals (SDGs) which aims to promote peaceful and inclusive communities, provide access to justice for all, and build effective as well as transparent institutions available to everyone at all levels.[2] Notably so, in modern human rights discourse, access to justice in relation to children has become a critical issue that demands great attention.[3] Children are among the most vulnerable groups in society, and alarmingly, their rights are being violated every day despite the treaties, declarations or protocols in place for their protection. It is more than common for them to be subjected to abuse, neglect, discrimination and exploitation due to their dependence on adults for care as well as protection, their lack of agency, and their limited understanding of their rights but also the legal system.[4] Thus, it is imperative for the overall well-being and development of children to ensure that they are able to access justice and seek remedies.[5]
The Committee on the Rights of the Child (hereafter the “Committee”), recognizing the importance of access to justice for children has prepared the draft General Comment No. 27 on Children’s Rights to Access to Justice and Effective Remedies.[6] The aim of the Committee is to provide detailed clarification and guidance on the particular right, emphasizing its significance and offering direction for its implementation.[7] In light of this initiative, this article will delve into the various aspects of the right to access justice in relation to children and explore the possible barriers they may face. Furthermore, it will highlight how the draft General Comment No. 27 can promote fairer and more just outcomes for children, enhance existing legal frameworks that safeguard their rights, and thereby reinforce their status within the legal system.
Understanding the Right of Children to Access to Justice
Access to justice for children, as defined by the UN High Commissioner for Human Rights (UNHCHR) means that every child is an active right holder with the capacity to obtain fair and timely remedies for right violations, in line with national and international standards.[8] This includes all legal systems and proceedings involving children, whether as offenders, victims, witnesses, or in custody matters.[9] To be specific, the right to access to justice encompasses several dimensions. First and foremost, access to justice for children signifies the ability to be heard and participate in legal proceedings that affect their lives. This includes providing children with the appropriate avenues to express their views, either directly or through a representative, ensuring that their voices are considered in judicial and administrative decisions.[10] This participation is not merely symbolic, but it is a substantive right that recognizes children as capable individuals whose opinions and perspectives are valuable in shaping outcomes that directly impact them.[11] Moreover, access to justice means that children must have access to child-friendly legal services and procedures. This involves ensuring that legal processes are understandable and accessible to children, taking into account their age, maturity, and specific needs.[12] It also requires that legal representatives and authorities handling children's cases are adequately trained in child rights and child psychology, thereby providing an environment where children feel safe and supported.[13] Another essential aspect of the right in question is the availability of legal remedies when the rights of children are violated. This includes not only the ability to bring complaints before competent national and international bodies and to seek redress and reparations for injustices suffered, but also the awareness of these remedies.[14] Children need to be aware of the existence of these legal avenues, as awareness is a fundamental step in ensuring they can effectively exercise their right to justice.[15] Lastly, access to justice also entails the provision of necessary safeguards and protections to prevent secondary victimization or trauma during legal proceedings.[16] Children, especially those who have faced distressing and traumatic experiences, require special measures to ensure that the process of seeking justice does not cause further harm.[17] This involves the use of sensitive interviewing techniques, the presence of supportive adults, and the implementation of privacy protections.[18]
It is worth to note that the right to access justice also underscores the importance of systemic changes to address barriers that children may face in the legal system.[19] For instance, one significant barrier is the complexity of legal language and procedures, which can be incomprehensible to children. Legal language is often dense and filled with terms that even adults struggle to understand, making it nearly impossible for children to grasp the nuances of their cases.[20] This complexity is compounded by the lack of child-friendly legal services and resources. Legal systems are typically designed with adults in mind, and as a result, there is a scarcity of materials and services tailored to meet the needs of children.[21] This makes it challenging for children to navigate the legal system independently or even with adult assistance.[22] Moreover, societal attitudes and cultural norms can further impede children's access to justice.[23] In many societies, children are not viewed as credible witnesses or capable of making significant contributions to legal proceedings.[24] Adults, including legal professionals and judges, may harbor unconscious biases towards children that can lead to children’s testimonies being disregarded or undervalued, ultimately affecting the outcomes of cases involving children's rights violations.[25] Additionally, logistical barriers such as geographical distance from legal institutions can prevent children, especially those from marginalized communities, from accessing legal remedies. This geographical isolation often means that children and their families must travel long distances, sometimes over challenging terrain, to reach the nearest legal facility, which can be both time-consuming and costly.[26] On that note, financial constraints are another significant barrier, as the cost of legal representation and associated expenses can be prohibitive for families with limited resources. Legal fees, transportation costs, and the need for accommodation when attending distant legal proceedings add up quickly, placing a heavy financial strain on families already struggling to meet their basic needs.[27] This economic hurdle often results in children being unable to secure the legal assistance they require, leaving them vulnerable and without adequate representation in legal matters that profoundly impact their lives.[28]
The Right of Children to Access to Justice in International Law
In the realm of international law, the right to access to justice is practically absent in explicit terms.[29] In fact, the 2006 Convention on the Rights of Persons with Disabilities (CRPD) stands out as the only international human rights treaty that specifically addresses this right, as outlined in Article 13 CRPD.[30] Nevertheless, various international human rights treaties emphasize different aspects of the right to access to justice, namely the right to an effective remedy.[31] An example would be Article 8 of the 1948 Universal Declaration of Human Rights (UDHR), which mandates that states parties must provide mechanisms for individuals to seek redress for rights violations.[32] Beyond the UDHR, several other international instruments are relevant such as the 1966 International Covenant on Civil and Political Rights (ICCPR). [33] In specific, Article 2(3) ICCPR imposes a binding obligation on state parties to ensure that individuals whose rights or freedoms are violated have access to effective remedies. This article underscores the necessity of judicial or administrative recourse that is not only available but also capable of providing redress.[34]
Interestingly, the 1989 United Nations Convention on the Rights of the Child (hereafter the “UNCRC”), one of the most widely ratified human rights treaty in the world does not make a reference to the right to access justice or the right to effective remedies.[35] On the contrary, it contains provisions that give children the opportunity to seek redress or challenge decisions that affect them.[36] Particularly relevant is Article 12 UNCRC on the right to be heard, which ensures that children capable of forming their own views have the right to express those views freely in all matters affecting them, and that their views are given due weight in accordance with the child's age and maturity.[37] For effective remedies to be meaningful, children must be able to voice their concerns and be heard in judicial and administrative proceedings. The ability to seek redress or challenge decisions, therefore, reinforces the child's right to be heard by providing a mechanism through which their opinions and grievances can influence outcomes that directly impact their lives.[38] In addition, the 2011 Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure (OPIC) also plays a pivotal role in this regard, as it provides a mechanism for children, or their representatives, to submit complaints directly to the Committee regarding specific violations of their rights under the CRC.[39] This procedure offers an international avenue for redress and accountability, ensuring that children's rights are upheld on a global scale.[40]
Significance of Draft General Comment No. 27
Thus, draft General Comment No. 27 is an important breakthrough in the realm of children's rights, primarily because, for the first time, the Committee is making an explicit connection between access to justice and children. In fact, the future implementation of the draft General Comment No. 27 is exciting, as it holds the potential to greatly enhance access to justice for children at both national and international levels. For the sake of clarification, General Comments are authoritative interpretations of the articles and provisions of international human rights treaties issued by treaty bodies.[41] They offer guidance on the proper understanding and implementation of specific articles of these treaties by states, courts, and other stakeholders.[42] Although these recommendations are not legally binding, they carry substantial moral and political influence, frequently affecting policy decisions and legislative reforms nationally as well as internationally.[43] In essence, they are vital in the development and strengthening of human rights standards.[44] Subsequently, for the Committee, General Comments are crucial tools that help clarify the obligations under the UNCRC, ensuring that states parties understand and effectively implement their duties to protect children's rights.[45]
Hence, draft General Comment No. 27 will provide a comprehensive framework for understanding and implementing the right of children to access justice. It elaborates on the obligations of states to remove barriers that children face in accessing justice, such as the ones explained above and advocates for the creation of specialized training programs for legal professionals, ensuring they are adequately prepared to manage cases involving children with the necessary sensitivity and effectiveness.[46] Furthermore, the draft General Comment No. 27 is set to contain detailed recommendations on best practices as it calls for the establishment of independent mechanisms to monitor and promote children's access to justice. This includes national human rights institutions, children's ombudspersons, and other oversight bodies that can advocate for children's rights, investigate complaints, and ensure accountability.[47] Undoubtedly, the draft General Comment No. 27 will serve as a valuable tool for advocacy, empowering non-governmental organizations (NGOs) and more.
Bibliography
[1] Maldonado Daniel Bonilla, ‘The Right to Access to Justice: Its Conceptual Architecture.’ (2020) 27 Indiana Journal of Global Legal Studies 15, 16.
[2] United Nations (UN), ‘Goal 16: Promote Peaceful and Inclusive Societies for Sustainable Development, Provide Access to Justice for All and Build Effective, Accountable and Inclusive Institutions at All Levels’ (Department of Economic and Social Affairs, Sustainable Development, 2024) https://sdgs.un.org/goals/goal16 accessed 28 July 2024.
[3] Liefaard Ton, ‘Access to Justice for Children: Towards a Specific Research and Implementation Agenda’ (2019) 27 The International Journal of Children’s Rights 196, 197. (hereafter ‘Liefaard’)
[4] Ali Bharti, ‘Access to Justice for Children: Challenges and the Way Forward’ in Asha Bajpai, David W Tushaus and Mandava Rama Krishna Prasad (eds), Human Rights and Legal Services for Children and Youth: Global Perspectives (Springer Nature 2023) 17, 18. (hereafter ‘Ali’)
[5] Ali, 17, 18.
[6] Committee on the Rights of the Child (CRC), Concept Note: General Comment on Children’s Rights to Access to Justice and Effective Remedies (CRC/C/KIR/CO/2-4) https://sdgs.un.org/goals/goal16 accessed 25 July 2024. (hereafter ‘Draft General Comment No. 27’)
[7] Draft General Comment No. 27, para. 3.
[8] United Nations, 'Access to Justice for Children: Report of the United Nations High Commissioner for Human Rights' (2013) A/HRC/25/35, para. 4. (hereafter 'UN, 'Access to Justice for Children'’)
[9] UN, 'Access to Justice for Children', para. 4.
[10] Khiari Kamel, ‘Children’s Access to and Participation in the Justice System in Light of National Characteristics’ in Caroline Siffrein-Blanc and others (eds), Children’s Access to Justice: A Critical Assessment (Intersentia 2022), 155-157.
[11] Committee on the Rights of the Child (CRC), 'General Comment No. 12 (2009), The Right of the Child to be Heard, CRC/C/GC/12', 20 July 2009, para. 13. (hereafter 'General Comment No. 12’)
[12] General Comment No. 12, para. 34.
[13] Limantė Agnė, Vaičiūnienė Rūta and Žėkas Tautvydas, ‘Accessibility of Legal Aid to Children in Conflict With The Law: Bringing the General Concept to Practice’ (2022) 15 Baltic Journal of Law & Politics 156, 157.
[14] Committee on the Rights of the Child (CRC), 'General Comment No. 5 (2003), General measures of implementation of the Convention on the Rights of the Child', CRC/GC/2003/5, 27 November 2003, para. 24.
[15] Muižnieks Nils and Kempf Françoise, ‘Children and Justice’, Child-friendly Justice, vol 1 (2015), 299, 300.
[16] General Comment No. 12, para 48, 49.
[17] General Comment No. 12, para 48, 49.
[18] General Comment No. 12, para 48, 49.
[19] Sormunen Milka, ‘Rethinking Effective Remedies to the Climate Crisis: A Vulnerability Theory Approach’ (2023) 24 Human Rights Review 182.
[20] Liefaard, 203, 204.
[21] Liefaard, 203, 204.
[22] Liefaard, 203, 204.
[23] Draft General Comment No. 27, para. 16.
[24] Liefaard, 203.
[25] Martin Lisa V., ‘Securing Access to Justice for Children’ (2022) 57 Harvard Civil Rights-Civil Liberties Law Review 648-650. (hereafter ‘Martin’)
[26] Liefaard, 203.
[27] Martin, 635-639.
[28] Martin, 635-639.
[29] Liefaard, 198.
[30] UN General Assembly, UN Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May 2008) UN Treaty Series vol 2515, p 3, Article 13 - Access to justice.
[31] Liefaard, 198.
[32] Universal Declaration of Human Rights, GA Res 217 A (III), UN GAOR, 3rd Session, UN Doc A/810 (1948), Article 8.
[33] UN General Assembly, International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 – Article 2 (3). (hereafter ‘ICCPR’)
[34] ICCPR, Article 2 (3).
[35] Liefaard, 198, 199.
[36] Liefaard, 199.
[37] UN General Assembly, Convention on the Rights of the Child, United Nations, Treaty Series, vol. 1577, p. 3, 20 November 1989, 2., Article 12. (hereafter ‘UNCRC’)
[38] General Comment No. 12, para 46, 47.
[39] UN Human Rights Council, Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure: resolution / adopted by the Human Rights Council, A/HRC/RES/17/18, 14 July 2011, 3, Article 5 - Individual Communications.
[40] De Beco Gauthier, ‘The Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure: Good News?’ (2013) 13 Human rights law review 382.
[41] Lesch Max and Reiners Nina, ‘Informal Human Rights Law-Making: How Treaty Bodies Use “General Comments” to Develop International Law’ (2023) 12 Global Constitutionalism 382, 383. (hereafter ‘Lesch and Reiners’)
[42] Lesch and Reiners, 382, 383.
[43] Lesch and Reiners, 382, 383.
[44] Reiners Nina (ed), ‘Human Rights Treaty Interpretation’, Transnational Lawmaking Coalitions for Human Rights (Cambridge University Press 2021) 25-27. (hereafter ‘Reiners’).
[45] Reiners, 25-27.
[46] Draft General Comment No. 27, para. 9-15.
[47] Draft General Comment No. 27, para. 16, 17.
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