INTRODUCTION

More than 30 years have passed since the signing of the Convention on the Rights of the Child (CRC). It has served as a basis for numerous demands and initiatives, among which several have to do with Children’s access to justice in cases concerning them.

The purpose of this contribution is to question the risks of seeing Children’s access to justice turn against them in order to better understand how to avoid these risks.

The subject is vast and the question difficult. The following thoughts are necessarily fragmentary, in light of the space allotted to this contribution. They draw their inspiration principally from observation of the Belgian legal system, and to a lesser extent, of some other Western systems. They are built on both my practice as a lawyer and my research. The present contribution is by no means the last word on the topic. Its sole purpose is to contribute to the debate and analysis.

CHILDREN AT THE HEART OF A DIALECTICAL TENSION

The child is both similar and different from the adult. They are similar because they are a thinking and speaking human being. However, they are different because of their physical and mental characteristics, their lack of experience, their relationship to the world, the use of codes specific to them, etc. These factual differences change over the life of the child. In the first years of life, children find themselves in a position of weakness due to their dependence on adults, who need to cover many of their needs. Subsequently, the diff erence embodied in older teenagers may take on ‘a negative image, one that is a little monstrous: too old to be cajoled, too young to be treated as an adult, they embarrass, provoke and frighten’. Rousseau already stressed that childhood was the condition of humanity: we cannot be adults without having been children. Childhood thus does not take the form of a succession of thresholds to be crossed in order to attain the perfect stage, that of adulthood.

Following the adoption of the Convention on the Rights of the Child (CRC) in 1989, it is no longer possible to exclude children from addressing the justice issues that aff ect them. They are recognized as having the right to express themselves on matters that concern them, in all proceedings in which they have an interest. Thirty years on, how far have we come? Are the rights that are recognized effective? How are they implemented? What purposes do they serve? Is justice child-friendly? Are children to be found in the justice system? Now is the time for a critical review.

Children’s access to justice suffers from the ailments affecting access to justice for all, such as involving a lack of information, cost, the shortcomings of legal aid, the complexity of the steps and formalities, the slow pace of proceedings, etc. In addition, children encounter difficulties linked to their specificities. In thinking about justice, no priority is given to adapting it to them. Conceived for adults, applied by adults, the judicial system does not primarily off er justice adapted to the differences that distinguish children from adults.

Over the last decade we nevertheless see initiatives emerging at the international level that question this situation. Prominent among these have been the Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice (2010), the Report of the United Nations High Commissioner for Human Rights (2013), and General Comment No.12 of the Committee on the Rights of the Child, on the right of the child to be heard (2009). These texts highlight the paths to be followed to improve the effectiveness of Children’s right to access the justice system. However, it is also necessary that States decide to make this a concrete priority.

An inter-university partnership was formed in 2017 to reflect on those issues. It brings together researchers from the University of Ottawa in Canada, the University of Leiden in the Netherlands, the Catholic University of Louvain in Belgium, and the Universities of Bordeaux and Aix-Marseille in France.

INTRODUCTION

Article 12 of the Convention on the Rights of the Child (CRC) guarantees the right of discerning minors to be heard on all matters aff ecting them, and to have their opinion taken into consideration. The Committee on the Rights of the Child notes this demonstrates the particularities of the legal and social status of children. On the one hand, they lack full autonomy from adults, but on the other they are subjects of rights. Children are simultaneously the same as and different from adults. They are human beings whom we must take seriously, while taking into account the factual differences distinguishing them from adults, without considering them as mini-adults, which they are not.

For both the Committee on the Rights of the Child and for the European Court of Human Rights (ECtHR),the child’s view is not considered as one element of appreciation among others to determine his or her interests, but rather as the determining element. Yet it took several decades to recognize the interest of – and even the need for – taking a child’s view into consideration in the legal field. Since the 1990s, recognition has followed demand. Provisions have thus been adopted in various areas of law concerning young people (family, child protection, juvenile delinquency, education, etc.) to gather the opinions and/or obtain their participation in the decision-making process. Two legal mechanisms were mainly used. The first is the hearing of the minor during the administrative or judicial procedure without him or her being a party to the case. Conversely, the second consists of making the child a party to the proceedings in the same way as the adults concerned.

While children may now make their opinions known, neither the mechanisms for youth assistance and protection, nor the nature of the judgments have changed significantly. Is it enough to insert mechanisms allowing minors to make their voice heard for these procedures to become truly child friendly ? To answer this question, it seemed relevant to turn to the young people themselves and interview them. By taking the word of young people as the cornerstone, our research fundamentally questions the capacity of the youth assistance and protection system to achieve its objective.