3 June 2015

Access to justice for children with mental disabilities

Today I addressed a meeting of European policy-makers in Brussels at an focusing on access to justice of children. The event was organised jointly by the EU Agency for Fundamental Rights and Unicef, in partnership with the European Parliament Intergroup on Children’s Rights. Here’s what I said.  

Oliver addresses European policy-makers

Congratulations to Anne Grandjean and her team at Unicef for this ground-breaking report. I am proud to have contributed, albeit in a very minor way, in shaping it. I am also so pleased that you’ve all seen our joint video, profiling the situation in Bulgaria and how our organisation is helping people on the ground to access justice within a system which requires some development.

I’ve been asked to zero in on children with mental disabilities – those labelled with ‘intellectual disabilities’ or ‘problem behaviours’. They disproportionately experience a variety of human rights violations, including the denial of inclusive or any education, placement in institutions which segregate from their communities, and where they are at risk of neglect, abuse and then being denied employment opportunities.

MDAC, with the University of Leeds and many researchers and experts from ten EU Member States conducted a two-year study co-financed by the EC and findings are now coming out. There are a range of reports, ranging from methodology report for the research enthusiasts, to synthesis reports for European parliamentarians and intergovernmental organisations, and country fact-sheets for national-level policy makers and NGOs. You can find them in multiple languages on www.mdac.org/accessing-justice-children.

We developed indicators based on international human rights law and used that them as a lens through which to look at the reality in ten Member States. We found that children with mental disabilities are underserved by criminal justice systems, as offenders, victims and witnesses. Also in civil and administrative proceedings when decisions are made about schooling and residence are taken they are not served well.

Their testimonies are often ignored by systems and judges which, and who, remain inflexible and paternalistic. Children are routinely not even consulted about issues which are likely to have a fundamental impact on their lives, whatever their age or type of severity of a perceived or actual disability. As a result we can say conclusively that children with disabilities are routinely being denied their right to a fair trial.

One of the most striking findings is that there is an almost complete lack of data available about how many children with mental disabilities come into contact with justice systems, the nature of their impairments, or the outcomes of proceedings. While all countries theoretically have national systems for monitoring human rights, we found that they rarely considered the position of this particularly marginalised group of children.

To investigate this gap, our researchers interviewed lawyers, judges, parents and other professionals about their perspectives and experiences of children with mental disabilities in justice systems. Despite statutory duties on governments to establish a system which assesses the needs of children to participate in proceedings that affect them, we found that this rarely happens in practice. In most cases, the purpose of assessments was to consider the cognitive capacities of children and the potential for them to give valid testimonies in compliance with rules of evidence, rather than to assess their communication or other needs.

View from the podiumView from the podium

The result was that these children are excluded from judicial proceedings altogether, or were made to endure processes that were formal, inflexible and ultimately denied them the right to be heard.

Without the right to be heard, there is no justice.

The report sets out a number of recommendations to governments and the European Union to address these concerns. The European Union can and should play an important role in providing the technical assistance to governments to do this effectively. In doing so, the Child-Friendly Justice Guidelines of the Council of Europe are an invaluable resource. Further, the EU should take a lead on conducting a systematic study on extent to which European justice systems are responsive to the rights and needs of children with mental disabilities.

At the domestic level, governments should undertaken assessments of their legal and policy frameworks to identify barriers to accessing justice for children with mental disabilities.

It is clear that the biggest barriers to be overcome are the limited knowledge and exclusionary attitudes of those involved with the administration of justice: judges, lawyers, police, social workers and psychologists. As a lawyer I can say that my profession carries a certain arrogance. We think we know everything. Why would we need training on how to talk to a child with learning difficulties? We assume – wrongly – that the knowledge and skills come with the law degree. It doesn’t. There should be mandatory training, and we have a special website on that topic which you should check out.

While a few examples of promising practices were found by researchers – such as the establishment of child-friendly interview rooms, and the use of intermediaries – these tended to be one-offs. It is now essential that governments take steps to develop the awareness of these professionals about the rights of children, of children with disabilities and their families, and the importance of a multidisciplinary approach to dismantling barriers and improving the quantity and quality of justice.

Thanks to EC, FRA, Unicef and NGOs like ours, every Justice Minister has access to what the international standards are. They also now have the evidence about the systems they are presiding over.

Reports and videos are an essential first step but it is change in the lives of children and young people however, that the success of governments will be measured against. We now need to turn our joint attention to encouraging and cajoling elected politicians and senior civil servants and the judiciary to take action.

We all need to roll up our sleeves and do whatever we can within our mandates to nudge them into that space. We need to put children, their families and their grassroots NGOs in the limelight. We need to provide resources and encouragement for them to be agents of their own change. And we urgently need that change to happen.

access to justice / EU / EC / FRA