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Last month, the Child Rights International Network released a report on child rights, more specifically, on children’s access to justice across the world. Titled Rights, Remedies and Representation, the report takes a detailed look at judicial systems across the world, and examines the rights granted (or often denied) to children.
The report, in which India is ranked 43 in the world, also provides a comparative listing of countries ranked as per “how well” these countries “allow children access to justice”.
In an e-mail interview with Bar & Bench’s Anuj Agrawal, CRIN’s Director, Veronica Yates, talks about the report, the recent amendment to the Juvenile Justice Act, and much more.
Bar & Bench: Could you tell us a bit more about how you went about preparing for the report?
Veronica Yates: This is the first report on access to justice for children in India. It was initially prepared by researchers at CRIN in December 2014 and was revised in July 2015 to incorporate comments by our trusted partner – the Centre for Child and the Law at the National Law School of India University, Bangalore. The global report and ranking on access to justice was drafted by CRIN between November 2015 and January 2016.
Bar & Bench: The report notes that “a fifth of the world’s children do not have the right to be heard in legal proceedings concerning them”, which is a staggering statistic. Why do you think children (and their rights) receive so little attention when it comes to laws?
Veronica Yates: The Convention on the Rights of the Child very clearly states that children’s views must be heard and given due weight in accordance with the child’s maturity. It is staggering that after nearly universal ratification and more than 25 years of the Convention being in force, not all countries have incorporated this very important principle in their laws. In 58 countries, the right to be heard is completely absent from legislation and in a further 84, it is restricted to only specific types of cases or children over a specified age.
CRIN believes legal systems overwhelmingly continue to regard children as objects, rather than rights-holders. This is immediately evident from the fact that in only four countries are children who wish to turn to the courts allowed to do so independently.
Bar & Bench: The Central American countries seemed to have performed remarkably well – any specific reasons for this?
Veronica Yates: Firstly, this is due to the fact that the CRC’s status in countries in Central and South America is very strong. Countries with a civil law legal system generally perform better in this regard. Almost all countries in the region have incorporated the Convention fully and allow it to be enforced directly in domestic courts (the exceptions being Guyana and Belize, which have a common law legal system).
Another notable aspect on which these countries scored well is the remedies that courts can award. Most countries in the region scored at least 10 points out of 16.
Furthermore, legal aid is largely available for most, if not all, types of cases involving children. A good example is Argentina’s Law 26061 which requires that children are provided by the State with free representation by a lawyer specialising in children’s issues.
Finally, we should note that in many countries, group or class action is allowed, as is the filing of and intervention in cases by non-governmental organisations – both of which are important aspects of access to justice.
Bar & Bench: In India, a recent amendment to the Juvenile Justice Act allows minors, under certain circumstances, to be tried in the adult criminal justice system. Thoughts?
Veronica Yates: The recent reforms to juvenile justice laws have undoubtedly been a regressive step and will affect children’s access to justice. Justice systems should always take the specific vulnerabilities of children into account, and it is never appropriate to try a child as an adult. The decision is particularly unjust when it is is based on the seriousness of an offence rather than the culpability of the child as is the case with the “heinous crimes” rule.
Whether a child understood the consequences of an offence or had the mental and physical capacity to commit that offence takes a much too narrow view of capacity, and fails to take account of how children develop over time. Evidence from the field of neuroscience indicates that the development of the prefrontal cortex of the brain continues throughout the first 20 years of life and full development may not be completed until well into a person’s 20s.
The ability to make decisions at a measured pace and in consultation with others is possible at a relatively early age; emotional development, however, occurs later, so that adolescents in the face of time or peer pressure are unlikely to be as mature as those made by adults. These developments mean that not only are children less culpable for the offences they commit, but they are also more open to rehabilitation in the community as they mature, including for serious offences.
Unfortunately, CRIN’s monitoring revealed a trend of States attempting to lower minimum ages of criminal responsibility for children. This is despite the UN Committee on the Rights of the Child consistently commending those who decide to make that age higher than what they’ve (regrettably) designated the very lowest acceptable minimum – 12 years of age.
Too often, governments quibble, both within the country and internationally, over bringing the minimum age of criminal responsibility one or two years up or down. But the real issue is whether the juvenile justice system truly respects the aims of rehabilitating children in conflict with the law. Instead of considering how to render a stricter punishment for children who have offended, States should abandon ideas of retribution and punishment and stop making children criminals.
Bar & Bench: Your report also notes that in South Africa, all custodial sentences for children are automatically reviewed by the High Court. Do you see States ensuring a greater degree of judicial oversight when it comes to child laws, or is South Africa an exception of sorts?
Veronica Yates: This aspect of the South African legal system is the only one we came across where a judgment in respect of the child is automatically scrutinised by a higher court. Passing a custodial sentence on a child has such a huge impact on the child’s life, it is imperative that the rights of the child, including those under international law, are observed. However, our research showed that most countries lack child-specific provisions concerning easier appeal of judgments.
We recently heard from a lawyer in Greece that there is no written legal requirement for judges to inform a child that their sentence is subject to judicial review. However, in practice most judges appear to do so.
In order to guarantee justice for children, laws must be put in place to ensure that judicial processes arrive at a decision which is consistent with the best interests of the child. The appeals process is an important aspect of justice as a safeguard against ‘bad’ decisions.
This also brings us to the question of national human rights bodies, which should be put in place as a watchdog of the State’s human rights compliance. More than half of countries have such a body with a general mandate to cover human rights, but few have a child-specific institution that can respond to individual complaints.
Similarly, children should have recourse to regional and international complaints mechanisms where they fail to secure justice at the national level. Since no such regional body currently exists on the Asian continent, States must urgently take steps to ratify the third Optional Protocol on the CRC which would allow children to submit written complaints to the UN Committee on the Rights of the Child after exhausting domestic remedies.
Read the complete report below.
(Images provided by CRIN)