Participation in Proceedings

Article 12 of the Convention on the Rights of the Child concerns respect for the voice of the child and states that a child shall be given the “opportunity to be heard in any judicial and administrative proceedings affecting the child.” The Committee on the Rights of the Child’s General Comment 12 proposes nine factors that must be addressed in any process involving children in order for the child’s participation to be effective and meaningful. According to the Committee, processes where a child is heard or participates must be:

1. Transparent and informative
2. Voluntary
3. Respectful
4. Relevant
5. Child-friendly
6. Inclusive
7. Supported by training
8. Safe and sensitive to risk
9. Accountable

Unicef has developed a resource guide that explores in depth what is meant by a child’s right to participate in the context of General Comment 12. A factsheet on participation published by UNICEF states that the child must be given an opportunity “to understand the consequences and the impact of their opinions” in order for participation to be meaningful and that the right to participate is a gateway for children to access other rights.

Article 7 of the Convention on the Rights of Persons with Disabilities (CRPD) echoes the rights in the CRC as it states that children should be heard in “all matters affecting them.” Article 13 of the CRPD also requires equal and effective access to justice for all persons with disabilities, including children with mental disabilities, and calls for age appropriate accommodations to facilitate that access. These disability-specific standards add meaning to the right of all children to effectively participate in all civil, criminal and administrative proceedings. Where needed, particular supports, accommodations and adjustments to procedures should be put in place for children with mental disabilities to ensure their effective participation.

At European level, further guidance on facilitating the participation of children in decision-making procedures affecting them has been developed by both the EU and Council of Europe. Under Article 7 of the EU Directive on establishing minimum standards on the rights, support and protection of victims of crimes, interpretation must be freely provided during questioning and during other stages of participation in the court system. Article 7 of the directive states that interpretation is required for “victims who do not understand or speak the language of the criminal proceedings concerned.” Children with mental disabilities may require communication support and interpretation to facilitate their participation in these proceedings. Article 26 of the same Directive states that victims of crime, including children, must be given sufficient information and treated in a respectful manner so that they can “make informed decisions about their participation in proceedings.”

The Council of Europe defined the principle of participation in their child friendly justice guidelines as encompassing: “The right to know about the right, the right to be able to access justice through appropriate support and the right to be consulted and heard in proceedings involving or affecting them.” According to these guidelines “due weight” must be given to the views of the child “bearing in mind their maturity and any communication difficulties they may have in order to make this participation meaningful. ”As noted in the UN Common Approach on Justice for Children “children’s meaningful participation in state-run and non-state justice proceedings often requires a significant change in law, legal practice and attitudes.”

Children with intellectual disabilities, autism and/or mental health issues historically have not always been allowed to participate in proceedings that impact on their life. This may be because participation in proceedings by children is not required or because of specific prohibitions against participation in proceedings. Participation for children with mental disabilities can also be restricted because of discriminatory stereotypes about a child’s ability to understand proceedings, lack of support and reasonable accommodations to participate, or inaccessible proceedings. In order for a right to participation to be effective for children with intellectual disabilities, autism and mental health issues, the proceedings must be accessible, there must be widely available communication supports in place carried out by trained staff who are comfortable and confident in working with children with mental disabilities.

A key concern for children with mental disabilities’ participation in proceedings is that the process must be safe and sensitive to risk. This means that confidential reporting procedures should be available for children with mental disabilities, and that children should be made aware of their right to be free from harm and abuse, and should know where to report abuse. For children with mental disabilities who are victims of abuse, safe participation in proceedings would need to include the provision of care and support for child victims away from alleged abusers. Children who are victims of abuse by a caregiver or relative may need more support and services than just access to the legal system itself. Multiple interviews of child victims can result in re-victimisation of the child. In the case of civil, administrative and criminal proceedings, non-disclosure of the child’s identity (either victim or defendant) can also be a key component of ensuring that the process truly allows for a child’s participation. See the section on Data Protection for more information.

One example of a good practice of protection facilitating participation can be found in Iceland in their Children’s House. The philosophy of Children’s House is that the child is the centre of the procedure and the various agencies must adapt to the child’s needs instead of the child being required to fulfil the requirements of the agencies. Children’s House provides a child friendly and safe environment for children who report sexual abuse to be interviewed by a trained child-friendly interviewer while the rest of the support and investigative team watches on close circuit video in order to cut down on the need for multiple interviews.

Once professionals recognise the right of children with mental disabilities to participate in proceedings, the core skills which are needed to achieve meaningful participation in proceedings include flexibility, communication, and the ability to identify and remove barriers to participation.

Some guidance on how to ensure effective participation for children with mental disabilities who are defendants in criminal proceedings is available in England and Wales. The suggestions given include:

• Arranging for a defendant to visit the courtroom before a court heating or trial so that he or she can familiarise themselves with it
• Using simple, clear language that the defendant can understand
• Holding proceedings in a courtroom in which all participants or on the same level
• Allowing defendants to sit with members of their family and/or other supporting adults, and in a place where they can easily communicate with their legal representatives
• Restricting attendance by members of the public and reporters

Another good example of facilitating participation for child victims is available in Bulgaria through the use of ‘blue rooms.’ {insert link to bibliography} This model uses a special room that consists of two parts separated by a one-way mirror, where children are interviewed or give evidence separate from everyone else in the proceedings, so that the child can feel safe and less traumatised.