Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice adopted by the Committee of Ministers of the Council of Europe on 17 November 2010 and explanatory memorandum
The Council of Europe programme “Building a Europe for and with chidren” www.coe.int/children Council of Europe Publishing
Guidelines
(Adopted by the Committee of Ministers on 17 November 2010
at the 1098th meeting of the Ministers’ Deputies)
Preamble
The Committee of Ministers,
Considering that the aim of the Council of Europe is to achieve a greater unity between the member states, in particular by promoting the adoption of common rules in legal matters;
Considering the necessity of ensuring the effective implementation of existing binding universal and European standards protecting and promoting children’s rights, including in particular:
► the 1951 United Nations Convention Relating to the Status of Refugees;
► the 1966 International Covenant on Civil and Political Rights;
► the 1966 International Covenant on Economic, Social and Cultural Rights;
► the 1989 United Nations Convention on the Rights of the Child;
► the 2006 United Nations Convention on the Rights of Persons with Disabilities;
► the Convention for the Protection of Human Rights and Fundamental Freedoms (1950, ETS No. 5) (hereafter the “ECHR”);
► the European Convention on the Exercise of Children’s Rights (1996, ETS No. 160);
► the revised European Social Charter (1996, ETS No. 163);
► the Council of Europe Convention on Contact concerning Children (2003, ETS No. 192);
► the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (2007, CETS No. 201);
► the European Convention on the Adoption of Children (Revised) (2008, CETS No. 202);
Considering that, as guaranteed under the ECHR and in line with the case law of the European Court of Human Rights, the right of any person to have access to justice and to a fair trial – in all its components (including in particular the right to be informed, the right to be heard, the right to a legal defence, and the right to be represented) – is necessary in a democratic society and equally applies to children, taking however into account their capacity to form their own views;
Recalling relevant case law of the European Court of Human Rights, decisions, reports or other documents of other Council of Europe institutions and bodies including recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), and statements and opinions of the Council of Europe Commissioner for Human Rights and various recommendations of the Parliamentary Assembly of the Council of Europe;
Noting various recommendations of the Committee of Ministers to member states in the area of children’s rights, including Recommendation Rec(2003) 5 on measures of detention of asylum seekers, Recommendation Rec(2003) 20 concerning new ways of dealing with juvenile delinquency and the role of juvenile justice, Recommendation Rec (2005)5 on the rights of children living in residential institutions, Recommendation Rec (2006)2 on the European Prison Rules, Recommendation CM/Rec (2008) 11 on the European Rules for juvenile offenders subject to sanctions or measures and Recommendation CM /Rec (2009) 10 on integrated national strategies for the protection of children from violence;
Recalling Resolution No. 2 on child-friendly justice, adopted at the 28th Conference of European Ministers of Justice (Lanzarote, October 2007);
Considering the importance of safeguarding children’s rights by United Nations instruments such as:
► the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”, 1985);
► the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (“The Havana Rules”, 1990);
► the United Nations Guidelines for the Prevention of Juvenile Delinquency (“The Riyadh Guidelines”, 1990);
► the United Nations Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime (ECOSOC Res 2005/20, 2005);
► the Guidance Note of the United Nations Secretary-General: United Nations Approach to Justice for Children (2008);
► the United Nations Guidelines for the Appropriate Use and Conditions of Alternative Care for Children (2009);
► the Principles relating to the Status and Functioning of National Institutions for Protection and Promotion of Human Rights (“The Paris Principles”);
Recalling the need to guarantee the effective implementation of existing binding norms concerning children’s rights, without preventing member states from introducing or applying higher standards or more favourable measures;
Referring to the Council of Europe Programme “Building a Europe for and with children”;
Acknowledging the progress made in member states towards implementing childfriendly justice;
Noting, nonetheless, existing obstacles for children within the justice system such as, among others, the non-existing, partial or conditional legal right to access to justice, the diversity in and complexity of procedures, possible discrimination on various grounds;
Recalling the need to prevent possible secondary victimisation of children by the judicial system in procedures involving or affecting them;
Inviting member states to investigate existing lacunae and problems and identify areas where child-friendly justice principles and practices could be introduced;
Acknowledging the views and opinions of consulted children throughout the member states of the Council of Europe;
Noting that the guidelines aim to contribute to the identification of practical remedies to existing shortcomings in law and in practice;
Adopts the following guidelines to serve as a practical tool for member states in adapting their judicial and non-judicial systems to the specific rights, interests and needs of children and invites member states to ensure that they are widely disseminated among all authorities responsible for or otherwise involved with children’s rights in justice.
I. Scope and purpose
1. The guidelines deal with the issue of the place and role, and the views,
rights and needs of the child in judicial proceedings and in alternatives to such proceedings.
2. The guidelines should apply to all ways in which children are likely to be, for whatever reason and in whatever capacity, brought into contact with all competent bodies and services involved in implementing criminal, civil or administrative law.
3. The guidelines aim to ensure that, in any such proceedings, all rights of children,
among which the right to information, to representation, to participation and to protection, are fully respected with due consideration to the child’s level of maturity and understanding and to the circumstances of the case. Respecting children’s rights should not jeopardise the rights of other parties involved.
II. Definitions
For the purposes of these guidelines on child-friendly justice (hereafter “the guidelines”):
a. a “child” means any person under the age of 18 years;
b. a “parent” refers to the person(s) with parental responsibility, according to national law. In case the parent(s) is/are absent or no longer holding parental responsibility, this can be a guardian or an appointed legal representative;
c. “child-friendly justice” refers to justice systems which guarantee the respect and the effective implementation of all children’s rights at the highest attainable level, bearing in mind the principles listed below and giving due consideration to the child’s level of maturity and understanding and the circumstances of the case.
It is, in particular, justice that is accessible, age appropriate, speedy, diligent, adapted to and focused on the needs and rights of the child, respecting the rights of the child including the rights to due process, to participate in and to understand the proceedings, to respect for private and family life and to integrity and dignity
III. Fundamental principles
1. The guidelines build on the existing principles enshrined in the instruments referred to in the preamble and the case law of the European Court of Human Rights.
2. These principles are further developed in the following sections and should apply to all chapters of these guidelines.
A. Participation
1. The right of all children to be informed about their rights, to be given appropriate ways to access justice and to be consulted and heard in proceedings involving or affecting them should be respected. This includes giving due weight to the children’s views bearing in mind their maturity and any communication difficulties they may have in order to make this participation meaningful.
2. Children should be considered and treated as full bearers of rights and should be entitled to exercise all their rights in a manner that takes into account their capacity to form their own views and the circumstances of the case.
B. Best interests of the child
1. Member states should guarantee the effective implementation of the right of children to have their best interests be a primary consideration in all matters involving or affecting them.
2. In assessing the best interests of the involved or affected children:
a. their views and opinions should be given due weight;
b. all other rights of the child, such as the right to dignity, liberty and equal treatment should be respected at all times;
c. a comprehensive approach should be adopted by all relevant authorities so as to take due account of all interests at stake, including psychological and physical well-being and legal, social and economic interests of the child.
3. The best interests of all children involved in the same procedure or case should be separately assessed and balanced with a view to reconciling possible conflicting interests of the children.
4. While the judicial authorities have the ultimate competence and responsibility for making the final decisions, member states should make, where necessary, concerted efforts to establish multidisciplinary approaches with the objective of assessing the best interests of children in procedures involving them.
C. Dignity
1. Children should be treated with care, sensitivity, fairness and respect throughout any procedure or case, with special attention for their personal situation, well-being and specific needs, and with full respect for their physical and psychological integrity.
This treatment should be given to them, in whichever way they have come into contact with judicial or non-judicial proceedings or other interventions, and regardless of their legal status and capacity in any procedure or case.
2. Children shall not be subjected to torture or inhuman or degrading treatment or punishment.
D. Protection from discrimination
1. The rights of children shall be secured without discrimination on any grounds such as sex, race, colour or ethnic background, age, language, religion, political or other opinion, national or social origin, socio-economic background, status of their parent(s), association with a national minority, property, birth, sexual orientation, gender identity or other status.
2. Specific protection and assistance may need to be granted to more vulnerable children, such as migrant children, refugee and asylum-seeking children, unaccompanied children, children with disabilities, homeless and street children, Roma children, and children in residential institutions.
E. Rule of law
1. The rule of law principle should apply fully to children as it does to adults.
2. Elements of due process such as the principles of legality and proportionality, the presumption of innocence, the right to a fair trial, the right to legal advice, the right to access to courts and the right to appeal, should be guaranteed for children as they are for adults and should not be minimised or denied under the pretext of the child’s best interests. This applies to all judicial and non-judicial and administrative proceedings.
3. Children should have the right to access appropriate independent and effective complaints mechanisms.
IV. Child-friendly justice before, during and after judicial proceedings
A. General elements of child-friendly justice
1. Information and advice
1. From their first involvement with the justice system or other competent authorities (such as the police, immigration, educational, social or health care services) and throughout that process, children and their parents should be promptly and adequately informed of, inter alia:
a. their rights, in particular the specific rights children have with regard to judicial or non-judicial proceedings in which they are or might be involved, and the instruments available to remedy possible violations of their rights including the opportunity to have recourse to either a judicial or non-judicial proceeding or other interventions. This may include information on the likely duration of
proceedings, possible access to appeals and independent complaints mechanisms;
b. the system and procedures involved, taking into consideration the particular place the child will have and the role he or she may play in it and the different procedural steps;
c. the existing support mechanisms for the child when participating in the judicial or non-judicial procedures;
d. the appropriateness and possible consequences of given in-court or out-ofcourt proceedings;
e. where applicable, the charges or the follow-up given to their complaint;
f. the time and place of court proceedings and other relevant events, such as hearings, if the child is personally affected;
g. the general progress and outcome of the proceedings or intervention;
h. the availability of protective measures;
i. the existing mechanisms for review of decisions affecting the child;
j. the existing opportunities to obtain reparation from the offender or from the state through the justice process, through alternative civil proceedings or through other processes;
k. the availability of the services (health, psychological, social, interpretation and translation, and other) or organisations which can provide support and the means of accessing such services along with emergency financial support, where applicable;
l. any special arrangements available in order to protect as far as possible their best interests if they are resident in another state.
2. The information and advice should be provided to children in a manner adapted to their age and maturity, in a language which they can understand and which is gender and culture sensitive.
3. As a rule, both the child and parents or legal representatives should directly receive the information. Provision of the information to the parents should not be an alternative to communicating the information to the child.
4. Child-friendly materials containing relevant legal information should be made available and widely distributed, and special information services for children such as specialised websites and helplines established.
5. Information on any charges against the child must be given promptly and directly after the charges are brought. This information should be given to both the child and the parents in such a way that they understand the exact charge and the possible consequences.
2. Protection of private and family life
6. The privacy and personal data of children who are or have been involved in judicial or non-judicial proceedings and other interventions should be protected in accordance with national law. This generally implies that no information or personal data may be made available or published, particularly in the media, which could reveal or indirectly enable the disclosure of the child’s identity, including images, detailed descriptions of the child or the child’s family, names or addresses, audio and video records, etc.
7. Member states should prevent violations of the privacy rights as mentioned under guideline 6 above by the media through legislative measures or monitoring self-regulation by the media.
8. Member states should stipulate limited access to all records or documents containing personal and sensitive data of children, in particular in proceedings involving them. If the transfer of personal and sensitive data is necessary, while taking into account the best interests of the child, member states should regulate this transfer in line with relevant data protection legislation.
9. Whenever children are being heard or giving evidence in judicial or non-judicial proceedings or other interventions, where appropriate, this should preferably take place in camera. As a rule, only those directly involved should be present, provided that they do not obstruct children in giving evidence.
10. Professionals working with and for children should abide by the strict rules of confidentiality, except where there is a risk of harm to the child.
3. Safety (special preventive measures)
11. In all judicial and non-judicial proceedings or other interventions, children should be protected from harm, including intimidation, reprisals and secondary victimisation.
12. Professionals working with and for children should, where necessary, be subject to regular vetting, according to national law and without prejudice to the independence of the judiciary, to ensure their suitability to work with children.
13. Special precautionary measures should apply to children when the alleged perpetrator is a parent, a member of the family or a primary caregiver.
4. Training of professionals
14. All professionals working with and for children should receive necessary interdisciplinary training on the rights and needs of children of different age groups, and on proceedings that are adapted to them.
15. Professionals having direct contact with children should also be trained in communicating with them at all ages and stages of development, and with children in situations of particular vulnerability.
5. Multidisciplinary approach
16. With full respect of the child’s right to private and family life, close co-operation between different professionals should be encouraged in order to obtain a comprehensive understanding of the child, and an assessment of his or her legal, psychological, social, emotional, physical and cognitive situation.
17. A common assessment framework should be established for professionals working with or for children (such as lawyers, psychologists, physicians, police, immigration officials, social workers and mediators) in proceedings or interventions that involve or affect children to provide any necessary support to those taking decisions, enabling them to best serve children’s interests in a given case.
18. While implementing a multidisciplinary approach, professional rules on confidentiality should be respected.
6. Deprivation of liberty
19. Any form of deprivation of liberty of children should be a measure of last resort and be for the shortest appropriate period of time.
20. When deprivation of liberty is imposed, children should, as a rule, be held separately from adults. When children are detained with adults, this should be for exceptional reasons and based solely on the best interests of the child. In all circumstances, children should be detained in premises suited to their needs.
21. Given the vulnerability of children deprived of liberty, the importance of family ties and promoting the reintegration into society, competent authorities should ensure respect and actively support the fulfilment of the rights of the child as set out in universal and European instruments. In addition to other rights, children in particular should have the right to:
a. maintain regular and meaningful contact with parents, family and friends through visits and correspondence, except when restrictions are required in the interests of justice and the interests of the child. Restrictions on this right should never be used as a punishment;
b. receive appropriate education, vocational guidance and training, medical care, and enjoy freedom of thought, conscience and religion and access to leisure, including physical education and sport;
c. access programmes that prepare children in advance for their return to their communities, with full attention given to them in respect of their emotional and physical needs, their family relationships, housing, schooling and employment possibilities and socio-economic status.
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