Access to Justice
‘Access to justice’ as an academic subject is classically associated with the work of Cappalletti in the 1970s and 1980s. In an article co-authored with Garth, he wrote that:
“The words ‘access to justice’ are admittedly not easily defined, but they serve to focus on two basic purposes of the legal system…. First, the system must be equally accessible to all; second, it must lead to results that are individually and socially just”.
In the context of human rights, a right to access justice is generally understood to focus on an entitlement to access mechanisms which provide redress for violations of one’s rights – mechanisms which are fair and lead to appropriate remedies. Thus the right to access justice is an enabling right in the sense that it enables one to challenge denial of other rights. To quote Lord, Guernsey, Balfe, Karr and Flowers (2009), para 12.1
“The ability to access justice is of critical importance in the enjoyment of all other human rights”.
Similarly, The Director of the EU Agency for Fundamental Rights has observed that:
“The possibility of enforcing a right is central to making fundamental rights a reality. Access to justice is not just a right in itself but also an enabling and empowering right in so far as it allows individuals to enforce their rights and obtain redress. In this sense, it transforms fundamental rights from theory into practice.”
In the words of Michael Mansfield QC, quoted in the Guardian in 2011
“Access to justice is a much broader concept than access to the courts and litigation … It encompasses a recognition that everyone is entitled to the protection of the law and that rights are meaningless unless they can be enforced. It is about protecting ordinary and vulnerable people and solving their problems.”
Basis in Human Rights Standards
The term ‘access to justice’ is not one which appeared in the early UN or Council of Europe human rights treaties. It is a concept which is rooted in the right to equality before the law (recognised eg in Article 14 of the International Covenant on Civil and Political Rights 1966).
It builds upon more narrowly framed references in human rights declarations and treaties to a right to a fair and public hearing (eg International Covenant on Civil and Political Rights, Article 14(1); European Convention on Human Rights, Article 6; and EU Charter of Fundamental Rights, Article 47); to a right to an effective remedy (eg Universal Declaration of Human Rights, Article 8; International Covenant on Civil and Political Rights, Article 2(3); European Convention on Human Rights, Article 13; and EU Charter of Fundamental Rights, Article 47); and to specific guarantees and supports in the criminal justice context (eg International Covenant on Civil and Political Rights, Article 14(2)-(7) European Convention on Human Rights, Article 6(2) and (3); and EU Charter of Fundamental Rights, Articles 49 and 50).
The term ‘access to justice’ did not explicitly appear in a UN or European human rights instrument until the EU Charter of Fundamental Rights 2000. Article 47 of this Charter includes, alongside articulation of rights to a fair and public hearing and an effective remedy, the following words:
“Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.”
Since then its profile has risen further. In the UN Convention on the Rights of Persons with Disabilities 2006, it appears as the title of Article 13. This Article adopts a broad conception of access to justice and is worth quoting in full. According to it:
“(1) States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.
(2) In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.”
The UN Convention on the Rights of the Child contains detailed provisions relating to the rights of children in criminal proceedings (Article 40). In addition, it recognises that children capable of forming views should have the opportunity to express them, including by being heard in judicial proceedings affecting them (Article 12). This emphasis on participation is echoed, in the specific context of separating a child from their parent, by the requirement in Article 9(2) that, in any relevant legal proceedings, “all interested parties shall be given an opportunity to participate in the proceedings”.
The UN Convention on the Rights of Persons with Disabilities and the UN Convention on the Rights of the Child provide key underpinnings for international standards on access to justice for children with mental disabilities. They also provide important orientation for European and national standards. However, their implications cannot be fully understood without reference to how they have been interpreted (eg in General Comments and Concluding Observations of the Committee on the Rights of Persons with Disabilities and the Committee on the Rights of the Child). Further, within Europe, standards on access to justice for children with mental disabilities are also to be found in Council of Europe and European Union instruments and guidance. Particularly influential Council of Europe guidance on access to justice for children is contained in the Child Friendly Justice Guidelines. The international and European human rights standards (and associated guidance) applicable to access to justice for children with mental disabilities is examined in detail in the Workstream 2 report for this project as well as in many of the sources referred to in the bibliography.
Relevance to Children with Mental Disabilities in Judicial Proceedings
Children experience barriers in accessing justice, as do adults with mental disabilities. For children with mental disabilities, access to justice barriers are often compounded. Their existence and nature is explored in detail in the Workstream 2 report for this project – which explores how the situation in 10 EU countries measures up against relevant international and European standards.