Representing children's views and best interests in court: an international comparison (original) (raw)
Related papers
South Africa still has some way to go towards ensuring that children's rights to legal representation and to be heard are fully implemented in relation to judicial proceedings affecting them. Nonetheless, some emerging practices point to an ongoing expansion of the realisation of these rights. This article charts some key developments in law, policy and implementation that constitute such practices. The article also argues that apart from merely serving as the child's voice in the courtroom setting, effective child lawyering is additionally contingent on a commitment to seeking out children in need of services, on an emphasis more broadly on stakeholder relationships in the sector, and a willingness to adjust to changing circumstances.
The rights of children in youth justice and civil court proceedings, and in particular the right of children to be heard or to 'participate' in such systems, is an area in which there has been much interest in recent years, particularly because of article 12 of the UN Convention on the Rights of the Child. There are a wide variety of proceedings in which children's interests are decided, for example where they are accused of a crime, where their parents are in dispute on family breakdown and where there are child protection concerns. This chapter examines recent developments in standards at international level concerning children's participation in proceedings, such as the drafting of General Comment No. 12 of the UN Committee on the Rights of the Child on the right to be heard and the child-friendly justice guidelines of the Council of Europe. It draws on recent international research in order to provide analysis of the extent to which such standards have affected practice and made a difference for children. It concludes that, although the development of such standards is to be welcomed, and although these standards have achieved some improvements at domestic level, the more extensive modifications required for genuine participation of children in the justice system has not occurred. Keywords UN Convention on the Rights of the Child; right to be heard; participation; youth justice; civil court proceedings; due process.
Independent Institutions Protecting Children's Rights
2001
Working in collaboration 9 Accountability 9 WHAT TYPE OF INSTITUTION? 9 Integrated or specialized? 9 Advantages of a specialized institution 9 Advantages of an integrated institution 10 National or regional institutions? 10 MAKING THE CASE FOR A HUMAN RIGHTS INSTITUTION FOR CHILDREN 10 What would be the aims of the institution? 10 What institutions already exist to promote and protect the human rights of children? 11 What support can be mobilized for the establishment of a human rights institution for children? 11 CHALLENGING THE OBJECTIONS 12 EXISTING INSTITUTIONS 15 w EDITORIAL When Ombudswork for Children, the first in the Innocenti Digest series, was published in 1997, we identified 16 Ombudsmen or Commissioners for Children. Now, just four years later, the number of these "independent human rights institutions for children" listed in this Digest-a fully revised and updated version of the first-has almost doubled. And there are many other institutions protecting human rights in general that expressly include children within their mandate. It is unlikely that this development during the late Nineties would have taken place without the Convention on the Rights of the Child. Most basically and obviously, the treaty sets out clearly the wide range of rights that need to be defended. But more than this, the Committee on the Rights of the Child has chosen to see the creation of such institutions as one necessary indicator of political will to promote and protect children' s rights-one of the obligations each State Party takes on under the terms of the Convention itself. The Committee, then, has become a major advocate for establishing these entities. True, this development is so far concentrated overwhelmingly in the industrialized nations and Latin America. True, too, that there is cause for concern over some of the argumentsexamined in the Digest-that are put forward to "explain" reticence or refusal to take up the idea. At the same time, there are clear indications of substantially growing interest, and this on all continents. This Digest is designed first and foremost as a tool for fostering and justifying that interest. Indeed, the finding reflected in this Digest is that, without independent institutions focusing entirely on the rights of children, these rights will rarely receive the priority they deserve. While children are among the heaviest users of public services, they remain the people who are least able to influence the actions of governments. The main task for such institutions is to close the gap between the rights rhetoric and the realities of children' s lives, ensuring that rights are translated into law, policy, and practice. The Digest examines the success of several existing institutions in relation to this goal. Rights have little relevance if nobody knows about them or understands them. Human rights institutions for children play a crucial role in informing children, governments, and the public about children' s rights, how those rights can be enforced, and why those rights are important. A measure of their success is the extent to which the institutions themselves are visible and accessible to children. One key factor is the extent to which the views of children influence the work of the institutions and the development of government policies. Above all, the institution must be accountable-to the government, to the public and, of course, to the children themselves. While there is growing support for independent human rights bodies for children, many governments are not yet persuaded. The Digest puts forward compelling arguments to demonstrate the need for these institutions and their impact. The model may differ according to the political and social reality of a particular country, but we can no longer debate the need to create a culture of respect for children' s rights in every country in the world.
Glasnik of the Bar Association of Vojvocina, 2023
The principle of the best interests of the child is one of the four fundamental guiding principles underlying the system for the protection of children's rights under the auspices of the United Nations and the Convention on the Rights of the Child (CRC). It constitutes a general principle, a flexible concept/term to which legal practitioners attribute specific meaning in each unique case. The Family Law of the Republic of Serbia and the Convention on the Rights of the Child both lack a definition of this principle, leaving ample room for assessing the child's best interests in concreto, i.e., in the scope of a specific case. In this regard, legal practitioners find valuable guidance in General Comment No. 14 (2013) by the Committee on the Rights of the Child, which clarifies the concept of the child's best interests. This document establishes objective criteria as guiding principles all decision-makers should adhere to in in matters concerning children. In addition to examining the prevalent perspectives within legal theory and regulations concerning criteria for assessing a child's best interests, this paper
Child's best interest in child protection legislation of 44 jurisdictions
Centre for Research on Discretion and Paternalism, 2022
The Centre addresses core themes in the social sciences by examining the government's use of power toward its citizens and the justifications of state interventions into people's lives. Important areas of empirical focus are child welfare and children's rights. Research at the Centre is comparative between nations, systems and individuals. The Centre is interdisciplinary, with researchers from across the world and from many disciplines-including political science, sociology, law, philosophy, psychology and social work. We use multilevel data sources in our approach, including interviews with experts, laws and regulations, and court judgements. We apply multiple research methods, including interviews, observation, text analysis, survey vignettes and survey experiments. The Centre works to communicate research-based knowledge about child welfare, children's rights, the welfare state, discretion and state power. Our researchers regularly participate as lecturers and frequent appearances in the media. News and research results are also published on our websites, Twitter and in our monthly newsletter. We also host and co-organize guest lectures, seminars and conferences. For more information, visit our webpage: http://www.discretion.uib.no This project has received funding from the European Research Council (ERC) under the European Union's Horizon 2020 research and innovation program (grant agreement no. 724460). Publications from the project reflects only the authors' views and the funding agency is not responsible for any use that may be made of the information contained therein.
Journal of Social Welfare and Family Law
This paper presents the views of judicial decision-makers (n= 1794) in four child protection jurisdictions (England, Finland, Norway, and the USA (California)), about whether parents and children are provided with appropriate opportunities to participate in proceedings in their countries. Overall, the study found a high degree of agreement within and between the countries as regards the important conditions for parents and children´s involvement, although the four systems themselves are very different. There was less agreement about children's involvement than parents', and the court decision-makers from Norway and Finland were more likely to express doubts about this. Nevertheless, the main message from the judicial decision-makers is that they are relatively satisfied as to how parents and children´s involvement is handled in their countries. Whether or not this confidence is justified, the emphasis on achieving effective involvement of children and parents in court proceedings is likely to grow, with major implications for the workers, decision-makers and agencies involved.
The Meaningful Participation and Complex Capacities of Children in Family Law
The International Journal of Children’s Rights
This paper explores the connection between articles within the United Nations Convention on the Rights of the Child and the participation and capacities of children. Though discussed in an abundance of literature, this article aims to analyse conceptually articles relating to the participation of children and expand upon the concept of a child’s capacity. The specific setting of custody and access proceedings will be considered throughout. Four critical articles, 3, 5, 9 and 12, within the Convention, will be examined thoroughly which emphasise the capacities, voices, views and best interests of children. These articles will be adequately considered in order to determine how the provisions actualise the participation of children in custody and access proceedings. A conceptual analysis of the aforementioned articles will be included to discuss concepts, definitions, language and critiques.
No Weight for 'Due Weight'? A Children's Autonomy Principle in Best Interest Proceedings
Article 12 of the UN Convention on the Rights of the Child (CRC) stipulates that children should have their views accorded due weight in accordance with age and maturity, including in proceedings affecting them. Yet there is no accepted understanding as to how to weigh children's views, and it is associated strongly with the indeterminate notion of " competence ". In this article case law and empirical research is drawn upon to argue that the concept of weighing their views has been an obstacle to children's rights, preventing influence on outcomes for children in proceedings in which their best interests are determined. Younger children and those whose wishes incline against the prevailing orthodoxy (they may resist contact with a parent for example) particularly lose out. Children's views appear only to be given " significant weight " if the judge agrees with them anyway. As it is the notion of autonomy which is prioritised in areas such as medical and disability law and parents' rights, it is proposed in this article that a children's autonomy principle is adopted in proceedings. In legal decisions in which the best interest of the child is the primary consideration, children should get to choose, if they wish, how they are involved and the outcome unless it is likely that significant harm will arise from their wishes. They should also have " autonomy support " to assist them in proceedings. This would likely ensure greater influence for children and require more transparent decision-making by adults.
The Child’s Best Interest Principle across Child Protection Jurisdictions
The results are publishes in a chapter of the book “Human Rights in Child Protection”, edited by Asgeir Falch-Eriksen and Elisabeth Backe-Hansen. The findings reveal significant differences between countries with regard to the interpretation of the principle of the child’s best interest, the strength of the principle compared with other principles, and the degree of discretionary power vested in decision-makers. The authors argue that the findings indicates that what is deemed important for children’s interests across child protection systems differs hugely, and as such the right of the child in many jurisdictions has a long way to go. The child best interest principle appears oftentimes as a right that is open to wide discretionary interpretation.