Access to Justice for Children

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Sample Syllabus for Professionals on Access to Justice as applied to Children with Mental Disabilities in Europe

This syllabus is intended for use for the training and education of legal and non-legal professionals. The syllabus can be used with participants who work with children with intellectual or learning disabilities, autism or mental health issues or for participants who may start working with such children. The syllabus is also useful for professionals whose work may be connected to access to justice issues.

The readings on this syllabus are intended to provide a foundation of knowledge of human rights, rights of the child and disability rights in a European context. The syllabus also seeks to present information on concepts on and related to access to justice as well as knowledge related to working with children with intellectual or learning disabilities, autism or mental health issues.

Since the syllabus is designed to be useful for a variety of professionals with a variety of experiences, certain articles may be more useful for certain professionals depending on their existing knowledge and experience.

In order to make this syllabus accessible across disciplines and to a variety of potential users all materials presented on the syllabus are available freely on the Internet without library subscriptions or permissions. Readings available in multiple languages were given a preference and when such materials are available in multiple languages they are marked with an asterisk (*).

We hope that those that use and complete the syllabus will gain a greater understanding of the impact of human rights on their work, the rights of children and the rights of people and children with disabilities. With this greater understanding we hope that participants will have learned how to integrate concepts of rights and access to justice in their day-to-day professional life.

Topic 1

What are Human Rights?- A Basic Introduction to International Human Rights Frameworks

This class aims to introduce the concept of international human rights to both legal and non-legal professionals. By the end of this class participants should have an understanding of the origin of international human rights as well as the legal instruments associated with international and European human rights.

Lynne Tammi, An Introduction to International Human Rights Law, (2005).

Universal Declaration of Human Rights,  (1948).*

Convention on the Rights of Persons with Disabilities (2006).*

Convention on the Rights of the Child (1989).*

Human Rights Education Associates, The European Human Rights System*

Mental Disability Advocacy Center, The European Convention on Human Rights and the rights of people with mental health problems and intellectual disabilities (2003).*

Center for Human Rights, Human Rights and Social Work- A Manual for Schools of Social Work and the Social Work Profession, Professional Training Series No. 1, (1994). Part 2 p.1-64

Video-European Court of Human Rights, European Court of Human Rights, (2012).

Video-Judge Thomas Buergenthal, A Brief History of International Human Rights Law, UN Audiovisual Library of International Law

http://legal.un.org/avl/ls/Buergenthal_HR_video_1.html

Topic 1 Discussion Questions

  1. Why do human rights matter?
  2. Are human rights the same as laws? Why or why not?
  3. Use the exercises from Part IV of University of Minnesota Human Rights Center, Human Rights, YES! –Action and Advocacy on the Rights of Persons with Disabilities 2nd ed., One Billion Strong (2012).

Topic 2

Access to Justice

The aim of this class is to cover the concept of access to justice. The class materials explore broad definitions of access to justice. By the end of the class participants should be able to identify the different aspects of access to justice in a variety of mechanisms.

a. University of Minnesota Human Rights Center, Human Rights, YES! –Action and Advocacy on the Rights of Persons with Disabilities 2nd ed., One Billion Strong (2012). Chapter 12

b. International Covenant on Civil and Political Rights (1976).* Pay special attention to Articles 7, 9, 10, 14, 16, 24, and 26.

c. European Convention on Human Rights* Pay special attention to Articles 3,6,13, and 14.

d. European Social Charter* Pay special attention to Articles 15, 17 and 30

e. International Disability Alliance, IDA submission to the CEDAW Committee’s General Discussion on Access to Justice, (18 February 2-13).

f. United States Institute for Peace, Necessary Condition: Access to Justice.

g. UNICEF, Promoting equitable access to justice for all children, zINSIGHTS: Child Rights in Central and Eastern Europe and Central Asia Issue 1 (2014).

h. Jon Robins, Access to Justice what the @%!? does that mean?, The Justice Gap (4 October 2011).

Topic 2 Discussion Questions

  1. What is access to justice and how does it apply in the field in which you work?
  2. How does access to justice apply to proceedings that do not take place in a court of law?
  3. Anya lives in a residential home for children with disabilities. One of the workers is very rude to her. There is a complaint procedure in place in the residential home but no one has explained it to Anya? Does Anya have access to justice? If not what would need to happen to ensure that Anya has access to justice?

Topic 3

Elements of a Fair Proceeding

This class looks over the elements of a fair proceeding for both administrative and criminal proceedings. Participants will learn about the rights that underlie a fair proceeding. There will be a special focus on the needs of children with mental disabilities in a fair proceeding.

a. Criminal Proceedings

i. Amnesty International, Fair Trial Manual2nd. Ed., (2014) Chapter 27

ii. Nuala Mole and Catharina Harby, The right to a fair trial-a guide to the implementation of Article 6 of the European Convention of Human Rights, Council of Europe: Human Rights Handbooks Series, No. 3 (2006).Pages 5-14, 38-50.

iii. Fair Trials, The Right to a Fair Trial, fairtrials.org. iv. United Nations, UN Standard Minimum Rules for the Administration of Juvenile Justice “Beijing Rules”, A/RES/40/33 (29 November 1985).*

v. European Commission, Proposal for a Directive of the European Parliament and of the council on procedural safeguards for children suspected or accused in criminal proceedings, COM(2013) 822/2, (2013).*

vi. Council of Europe, Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice (17 November 2010).

vii. Committee on the Convention on the Rights of the Child, General Comment No. 12, CRC/C/GC/12, (1 July 2009).

viii. Video: Council of Europe, Child Friendly Justice (21 November 2011). http://webtv.coe.int/index.php?ODID=216&CategoryID=29&SubCategoryID=33&arrows=1

b. Administrative Proceedings

i. European Court of Human Rights, Guide on Article 6-Right to a Fair Trial (civil limb) , (2013).

ii. OSCE ODIHR, Handbook for Monitoring Administrative Justice, (September 2013). Ch.1 & Ch. 3. iii. General Assembly, Resolution adopted by the General Assembly on Guidelines for the Alternative Care of Children, A/Res/64/142 (24 February 2010).*

Topic 3 Discussion Questions

  1. What is the difference between a fair criminal trial and fair civil or administrative procedure?
  2. Are there different things that are required to make sure that a proceeding is fair for juveniles?
  3. A state is drafting a new law that will set out the procedure by which children and young people are tried. What are some safeguards that the state should implement in order to ensure that the proceeding is fair for children? Are there additional safeguards needed to ensure that children with mental disabilities are tried by a fair proceeding?
  4. A residential care facility for young children with disabilities is creating a procedure to allow young residents to make complaints about the care. What elements must be a part of the procedure to ensure that it is fair?

Topic 4

Disability and Childhood

This class looks at the intersection of disability and childhood and the barriers these intersecting identities create. Participants will learn about the rights of children with disabilities at the UN and EU level.

a. Disability

i. Convention on the Rights of Persons with Disabilities (2006).*

ii. UNICEF/Victor Pineda Foundation, It’s About Ability – An explanation of the Convention of Persons with Disabilities, UNICEF (April 2008).

iii. International Federation of Social Workers, People with Disabilities, Policies, (23 February 2012).

iv. Amita Dhanda, Construction a new Human Rights lexicon: Convention on the Rights of Persons with Disabilities, Sur International Journal on Human Rights, 8.

v. University of Minnesota Human Rights Center, Human Rights, YES! –Action and Advocacy on the Rights of Persons with Disabilities 2nd ed., One Billion Strong (2012). Part I.

b. Children

i. Convention on the Rights of the Child, (20 November 1990). Pay special attention to Articles 3, 4, 5, 9, 12, 20, 23, 28, 29, 37 and 40

ii. General Comment 5 on the General Measures of Implementation of the Convention on the Rights of the Child,CRC/GC/2003/5 (27 November 2003).* iii. EU Commission, An EU Agenda for the Rights of the Child, COM (2011) 60 final, (15.2.2011). *

c. Children and Disability

i. University of Minnesota Human Rights Center, Human Rights, YES! –Action and Advocacy on the Rights of Persons with Disabilities 2nd ed., One Billion Strong (2012). Chapter 15

ii. UNICEF, The Right of Children with Disabilities to Education: A Rights-Based Approach to Inclusive Education-position Paper,(2012).

Topic 4 Skills

Topic 4 Discussion Questions

  1. What different barriers do children with disabilities face that might be different from barriers faced by children without disabilities or adults with disabilities?
  2. Do children with disabilities have different rights from children or adults with disabilities?
  3. Maya is a 12-year-old girl with autism. She has been attending a special school but would like to transfer to a mainstream school for secondary school. Maya’s teachers think that with support she can succeed at a mainstream secondary school. Maya’s parents are worried about her attending a mainstream secondary school. In order to transfer Maya must go to an administrative hearing to make her request. Under the CRPD what would Maya’s rights be? What are her rights under the CRC? What rights do her parents have?

Topic 5

Equality and Non Discrimination

This class will teach the concept of equality and non-discrimination and look specifically on how this right impacts children with mental disabilities. The class will also look at how equality and non-discrimination impact on issues related to access to justice.

a. Office of the High Commissioner for Human Rights in Cooperation with the International Bar Association, Human Rights in the Administration of Justice- A Manual on Human Rights for Judges, Prosecutors and Lawyers, Geneva (September 2002).Chapter 13

b. Convention on the Rights of Persons with Disabilities (2006). Article 5

c. Convention the Rights of the Child (1989).Article 2

d. Washington State Access to Justice Board Impediments Committee, Ensuring Equal Access for People with Disabilities-A Guide for Washington Courts, (August 2006). §G page 13

e. Equal Rights Trust, Working draft: Non-Discrimination and Equality Standards Compendium (March 2008). Part 1, §2.3, §2.7, §3.20

Topic 5 Skills

Topic 5 Discussion Questions

  1. What is the difference between the same treatment and equal treatment?
  2. How are accommodations different from discrimination?
  3. Pal is a child with an intellectual disability. He is being placed into care and would like to speak to the judge about the situation before a final decision is made. The judge in this jurisdiction allows any communication from a child regarding the placement. The judge is very busy, however, and thus will allow the communication only if it is in writing and in the child’s own hand. This child cannot write because of his disability. What are the issues and of equality and non-discrimination present in this situation?

Topic 6

Accessibility

This class will look at the meaning of accessibility for children with mental disabilities. This section will focus on what accessibility means in the context of accessing justice.

a. Child Rights International Network, Child-Friendly Justice and Children’s Rights, CRIN.*

b. Augmentative Communication Community Partnerships CANADA, Communication Access in Legal Contexts (2010).

c. Washington State Access to Justice Board Impediments Committee, Ensuring Equal Access for People with Disabilities-A Guide for Washington Courts, (August 2006).Pages15-30

d. Villamanta Disability Rights Legal Services, People Who Have an Intellectual Disabilities and the Criminal Justice System, (2012). Pages 7-12, 25-26

Topic 6 Skills

Topic 6- Discussion Questions

  1. Name some accessibility measures you see in your day-to-day life.
  2. What measures would make your work more accessible to people with disabilities? To children?
  3. Jan is 16 years old and is accused of stealing from the local shoe store. Jan has some mental health issues that make it difficult for him to feel comfortable in crowds or amongst large groups of people. To combat this difficulty Jan has a strategy of wearing dark sunglasses, which make him feel safer and more confident in crowds or amongst groups of people. Jan wants to wear his sunglasses to his trial. How would the principals of accessibility support this need? What might be some objections? Would it be different if Jan was a child victim testifying rather than a defendant?

Topic 7

Ability to Make Complaints

This class examines how complaint mechanisms are essential to ensuring access to justice. The materials will also look at what complaint mechanisms must do in order to be accessible to children with mental disabilities.

a. Australian Commissioner for Children and Young People, Are you listening? Guidelines for making complaints systems accessible and responsive to children and young people, (June 2013).

b. CAFOD, Complaints Handling Mechanisms- A guide for CAFOD staff to accompany partner organisations to set up CHM within international programme activities, (June 2010)

c. Penny Parker, Complaint Mechanisms under the UN Human Rights Treaties, The Advocates for Human Rights (7 January 2014). §10,11, 19, & 20.

d. Office of the Special Representative of the Secretary on Violence against Children, Safe and child-sensitive counselling, complaint and reporting mechanisms to address violence against children, New York (2012).

Topic 7 Discussion Questions

  1. What complaint systems exist in your region? In your profession?
  2. Are they accessible to children? Are they accessible to children with mental disabilities?
  3. George and Marta are the parents of a 5 year old boy with an intellectual disability. George and Marta want their son to attend a mainstream school. The mainstream school says they cannot accommodate their son in their school. George and Marta want to lodge a complaint. What sort of mechanism might they encounter? What are their rights? What are their son’s rights?

Topic 8

Participation

This class looks at the principal of participation in proceedings for both victims and defendants. Participants will learn about victim rights as well as the right of defendants to be heard. The class will also explore the broader meaning of participation and how that principle is used in children’s rights to further their access to justice.

a. General Principals of Participation

i. Council of Europe, Recommendation of the Committee of Ministers to member States on the participation of children and young people under the age of 18, CM/Rec(2012)2, (2012).*

ii. Council of Europe Children’s Rights Division and Youth Department, Child Participation Assessment Tool, *

iii. Open Society Foundations and the British Council, Meaningful Participation by Young People in International Decision-making: Principles, Practice and Standards for the Future, The London Symposium, (May 16th-19th, 2011).

b. The rights of victims to participate in justice proceedings

i. Directive of the European Parliament and of the Council establishing minimum standards on the rights, support and protection of victims of crime, 2012/29/EU (25 October 2012).*

ii. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, A/RES/40/34 (29 November 1985)*

iii. DG Justice Guidance Document related to the transposition and implementation of Directive 2012/29/EU of the European Parliament, (December 2013). iv. Video: Council of Europe, Keep me safe from sexual violence (20 November 2012).

http://www.coe.int/t/dghl/standardsetting/childjustice/News/Keepmesafe_en.asp

c. Voice of the Child

i. Committee on the Rights of the Child, General Comment No. 12 The right of the child to be heard, CRC/C/GC/12 (20 July 2009).

ii. Sir Mark Potter, ‘The Voice of the Child: Children’s ‘rights in Family Proceedings’ The Family in Law 2 (2008).

iii. Gerison Lansdown, Every Child’s Right to Be Heard- A Resource Guide on the UN Committee on the Rights of the Child General Comment No.12, Unicef and Save the Children (2011).

Topic 8 Discussion Questions

What is the difference between the right to be heard and the right to participate?

What does the concept of the voice of the child entail?

What rights to child victims have in proceedings? What rights do child defendants have in proceedings? How are these rights different? How are they the same?

David’s parents are getting a divorce, David is seven years old. Each parent wants custody. Is the judge in the case obligated to hear David’s opinion or preference? Would that change if David was 13 or 17? What might be the drawbacks in mandating that David participates? What if David has an intellectual disability? What if David has mental health issues?

Ms. Smith is a teacher at a school. She wants to ensure that children have a greater say in their education. What measures might she take to ensure that the voice of the child is respected?

Dana is a social care manager at a residential home for children with disabilities. How may she ensure that the voice of the child is heard in the provision of their services? How can she ensure access to justice through utilizing the voice of the child?

Topic 9

Representation and Assistance

This class will look at the right to representation and assistance and how that relates to children with mental disabilities. The materials will explore the right to representation and assistance in legal and non legal proceedings.

a. Child Rights International Network, Guide- Legal Assistance for Children.

b. Justicia European Rights Network, A Guide to Minimum Standards on the Right of Access to a Lawyer and to Communicate upon Arrest (December 2012).

c. Jan Hoffman, In Interrogations, Teenagers Are To Young to Know Better, New York Times (13 October 2014).

d. Prison Reform Trust, Contents, Supporting vulnerable defendants in court, communication in court (2013).

e. Prison Reform Trust, Contents, Supporting vulnerable defendants in court, communication in court, specialist communication support-intermediaries (2013). f. Martha F. Davis, ‘Access and Justice: The Transformative Power of Pro Bono Work,’73 (3) Fordham Law Review, 903 (2004).

Topic 9 Discussion Questions

  1. In what sorts of procedures should children have a right to a lawyer? (criminal, civil, administrative, family law?)
  2. What are the benefits of having lawyers represent the child directly rather than parent/guardians?
  3. What are the special considerations lawyers who represent children must have?
  4. What are ways children can have assistance or representatives without using lawyers that would still secure their rights?
  5. Kara is a 15 year-old-girl and must go to court for underage drinking. Kara has some mental health issues. Kara’s parents were present during the interrogation and told the police that they should do “whatever they think is best” since Kara was bad and broke the law and thus deserves to be punished. Kara’s parents say that there is no need to go to trial. What are Kara’s rights? What are her parents’ rights? What sort of representation is Kara entitled to as a matter of rights?
  6. Tomas’s parents are unable to provide him with adequate care so he is placed into a foster home. In the proceedings to remove him from his parents care Tomas has a guardian ad litem who represents Tomas’s views to the court but also reports their opinion on what would be in Tomas’s best interest. Is a guardian ad litem a representative? What are the benefits of having a guardian ad litem versus a lawyer? Why might a lawyer be better for Tomas? Why might a lawyer be worse for Tomas? What sort of representation is Tomas entitled to as a matter of rights?

Topic 10

Communication with Children

This class seeks to teach professionals on how to communicate with children especially children with mental disabilities. This has many materials targeted at legal professionals who may not be accustomed to working with children with mental disabilities but the content may be useful for any professional learning to communicate complex information to children with mental disabilities.

a. Augmentative Communication Community Partnerships CANADA, Communication Facts (2010).

b. Child Rights International Network, Guide for Legal Professionals, *

c. Dr. Paul Swift et. al., What happens when people with learning disabilities need advice about the law?, University of Bristol and Norah Fry Centre, (July 2013).

d. Walk, Make it easy, A guide to preparing Easy to Read information. e. Video: Mencap, Legal Services Summary (30 July 2013)

e. Video: Mencap, Legal Services Summary (30 July 2013).

f. Video: Leicestershire Partnership NHS Trust, If You Listen, You will hear us (7 December 2013).

Topic 10 Skills

Topic 10 Discussion Questions

  1. Explain a concept taught in an earlier class (access to justice, equality, disability) in easy read language.
  2. How are easy read language or alternative communication techniques connected to principals of access to justice?
  3. Role Play – Split into partners and each partner must take a turn in explaining a common process in their work in easy read language. The other partner should keep in mind the easy read guidelines and say they don’t understand whenever the speaking partner is using language that may be difficult or complicated for people who benefit from easy read language.

Topic 11

Effective and Appropriate Data Protection

This class explores the principals and laws surrounding data protection in the EU. The class looks not only at what is data and what are the obligations underlying the principles of data protection but how to balance those principals against the best interests of the child in issues around data protection and children.

a. Opinion 01/2014 on the application of necessity and proportionality concepts and data protection within the law enforcement sector, 536/14/EN WP 211 (27 February 2014). Part II.

b. Working Document 1/2008 on the protection of children’s personal data (General Guidelines and the special case of schools), 00483/08/EN WP 147 (18 February 2008) c. Peter Hustinx, EU Data Protection Law: The Review of Directive 95/46/EC and the Proposed General Data Protection Regulation, (2014). d. UNICEF, Children’s Rights and Journalism Practice-Student Guide, (2007).p 38-45, 66-77, 88-107.

e. Video-What You Need To Know, Data Protection…What you need to know, (26 June 2013).

Topic 11 Discussion Questions

  1. How is data protection balanced against the best interests of the child?
  2. How is data protection different for children versus adults?
  3. Discuss Case Study 1 on page 106 of the UNICEF Children’s Rights and Journalism Practice-Student Guide (material d in Class 11 syllabus). Does Mary Bell have a right to anonymity? What could or should have journalists done differently in reporting her case?

Topic 12

Using human rights tools to achieve access to justice

This class illustrates how human rights tools can be used to achieved justice. The class will look at how to use human rights in advocacy efforts and as a tool in legal case

a. Martha Davis, Human Rights in the Trenches: Using International Human Rights Law in “Everyday” Legal Aid Cases, 41 Clearinghouse Review Journal of Poverty Law and Policy, 414(Nov-Dec 2007).

b. Center for Human Rights, Human Rights and Social Work- A Manual for Schools of Social Work and the Social Work Profession, Professional Training Series No. 1, (1994).Part 1 & Part 3

c. Amnesty International, A Whole School Approach to Human Rights Education (2012).

d. Audio: Clearinghouse Review, Panel Discussion on Claiming Our Role as Human Rights Lawyers: How a Human Rights Framework Can Advance Our Advocacy, (21 June 2011).

Topic 12 Skills

Topic 12 Discussion Questions

  1. How can human rights be used to further access to justice?
  2. How can non-legal professionals incorporate human rights principals into their work?
  3. What are ways you can incorporate a rights based approach to increase access to justice for children with mental disabilities in your work?