Submission to the UNCRC on General Comment No. 27 ‘Children’s Rights to Access to Justice and Effective Remedies’

Introduction

The OCO is making this submission pursuant to section 7(1)(e), which provides for the Ombudsman for Children to highlight issues relating to the rights and welfare of children that are of concern to children. In its 2023 Concluding Observations, the UN Committee on the Rights of the Child (the Committee) has identified child justice as one of the main areas of concern in respect of which urgent measures must be taken by Ireland. The OCO welcomes that the Committee has decided to dedicate its 27^th General Comment to children’s rights to access to justice and effective remedies.

The purpose of this submission is to contribute to the guiding questions raised in the Committee’s call for submissions regarding:

• children’s understandings of justice and remedies; and
• barriers preventing children from gaining access to justice and effective remedies.

In preparing this submission, we have referred to the work the OCO developed over the last few years, to a consultation undertaken by our Participation and Rights Education Unit on 13 August with our Youth Advisory Panel (YAP) on access to justice and effective remedies, and to complementary research undertaken in this area.

 

What the General Comment is

During its 95^th session in January 2024, the Committee on the Rights of the Child decided to draft a General Comment on Children’s Rights to Access to Justice and Effective Remedies.

General comments provide an authoritative interpretation of the rights contained in the provisions of the Convention on the Rights of the Child and as such are a valuable contribution to the development and application of international human rights law. The main purpose of a general comment by the Committee on the Rights of the Child is to promote the implementation of the Convention at national level.

General Comment N.27 will clarify concepts and terminology in relation to children’s rights to access to justice and effective remedies. Additionally, it will provide guidance on ensuring the empowerment of all children as rights-holders, including child human rights defenders, as well as to those children who are involved in justice processes (such as accused, victim, including victim of sexual violence, witnesses, those in need of care and protection, claimants and respondents). The concept note for the general comment lays out the terminology, outlines the anticipated scope of the general comment and outlines the key issues it aims to address.

 

Why we made a submission

The OCO is a national human rights institution with a responsibility to highlight issues relating to the rights and welfare of children that are of concern to children. In its 2023 Concluding Observations, the UN Committee on the Rights of the Child has identified child justice as one of the main areas of concern in respect of which urgent measures must be taken by Ireland.

The purpose of this submission is to contribute to the guiding questions raised in the Committee’s call for submissions regarding:

• children’s understandings of justice and remedies; and
• barriers preventing children from gaining access to justice and effective remedies.

The OCO submission was informed by the findings of a consultation undertaken by our Participation and Rights Education team with the OCO Youth Advisory Panel on 13 August 2024.

 

What are children’s understandings of justice and remedies?

Findings from our YAP consultation illustrate how multifaceted the concept of access to justice is and how potential improvement requires action across many areas, as noted in a conference hosted by the Chief Justice’s Working Group on Access to Justice.

‘Justice’ was described by the YAP as helping those in need; “fairness and equality between everyone no matter their circumstances”, “getting your just deserts”, “restoring order”, while recognising that “those who are supposed to get justice are often neglected”, “we should know more”, and “the concept of justice shifts the wealthier you are”. ‘Access to justice’ was understood as getting help, being seen and heard by judges and teachers, getting recognition, acknowledgment, and understanding, getting more knowledge that you don’t have on your own, and meaning “that you know where to go for help if justice is not being provided to you”. “People of authority”, “a trusted guardian/parent, police or even the OCO”, teachers, friends, youth workers, doctors, social workers, solicitors/lawyers were identified as ‘who to talk to in a situation where rights violations occur’. Trust was mentioned as really important in this context.  In relation to ‘what helps children to get justice’, the YAP’s views include: dealing with people who are “trustworthy”, professionals with experience engaging with children, giving children enough “space and time to explain their issue”, allowing children to choose who is present when they are explaining their issue, reducing costs, information in places where young people can see it, peer support, counselling for child victims and witnesses of crimes before, during and after court, supports for disabled children and for children who don’t speak the language.

 

Barriers preventing children from gaining access to justice and effective remedies  

Overarching barriers

• Lack of full incorporation of the UN Convention on the Rights of the Child (the Convention) into Irish domestic legislation, resulting in children’s rights being seen as aspirational, and not justiciable. Piecemeal legal incorporation carried out thus far has meant that the Convention often constitutes merely persuasive authority in the domestic courts, and individuals cannot seek remedies for a breach of most of its rights before the Irish courts.[1]
• As a result, children in Ireland are often not seen as rights-holders or as autonomous individuals with their own agency, with a mentality of ‘children should be seen and not heard’ still persisting. Having regard to children’s status as subjects of rights and to children’s rights, in our submission on a national Family Justice System, the OCO recommended that to put children first in the justice system, the best interests of the child should guide actions and decisions from the outset. Additionally, a focus on children’s best interests would help uphold children’s right to be heard.
• Currently, children (as victims, defendants, witnesses), are not fully supported to express their views directly as subjects of rights in relation to decisions that affect them. In consultations for the Family Justice Oversight Group, children said they wanted more opportunities/options to express their opinions and to be listened to e.g., opportunity to express their views privately (without their parents if desired).
• Regarding incorporation of the voice of the child, the OCO has continued to reiterate the view that existing law and practice are seriously deficient and that considerable work remains to be done to realise children’s constitutional right to be heard under Article 42A.4.2. These concerns were also raised in the OCO’s Alternative Report to the Committee, including in relation to expert reports in family law proceedings. In addition, all of the evidence indicates that at present, our courts are an adversarial forum, with facilities that are unsuitable for child participation, and staff who often have not been provided with the training necessary to facilitate child participation in an effective and appropriate manner.[2]
• As mentioned by IHREC, in realising the right of the child to be heard, States have a duty to fully assess a child’s capacity, as far as practicable, to form their own views and should presume that a child has such capacity. The means used to hear the voice of the child: “should be adapted to the child’s level of understanding and ability to communicate and take into account the circumstances of the case” and children “should be consulted on the manner in which they wish to be heard”.

 

Legal barriers

• Children in Ireland do not have legal standing to institute proceedings in their own right. They need to rely on a parent/guardian/other adult to do this. Where there may be a conflict of interest between a parent’s interests and a child’s/where a child is in care/is a separated child within the asylum system, the absence of a provision recognizing children’s independent legal standing can provide a real barrier to them accessing justice.[3] Similarly, in the context of domestic violence, the 2018 Act does not provide for a child to make a court application for protection and safety orders in their own right (OCO Alternative Report to UNCESCR). In the context of children and climate action, see OCO’s submission to a Consultation on the Irish Climate Action Plan.
• As mentioned in an OCO Report, as a result of Ireland’s position, children become invisible where legal processes involve families – e.g. in immigration law, applications for children’s residence are often subsumed within that of a parent and therefore the individual needs of the child, separate to the needs/claims of their family, are not examined.

 

Socio-economic barriers

• Poverty. The cost of justice, including the cost of legal representation was identified by the YAP as a barrier for those who are living in poverty or from lower income families. As noted during the Chief Justice’s Working Group on Access to Justice Conference, the inability to access justice can be both a result and a cause of disadvantage and poverty, with the issue of ‘clustered injustices’ being consistently highlighted. Extensive research on the cost of delivering access to justice, and the cost of not doing so, found that 58% of people experiencing one problem reported experiencing two or more problems. There’s a cascade effect whereby the more problems people have, the more likely they are to suffer further problems, with a number of predictive variables, such as age, disability, number of children, income and gender. Hidden costs that those living in poverty will often find difficult to meet were also highlighted (e.g. costs of transport to courthouses and solicitors and the costs of childcare). Furthermore, delays in hearing dates can compound these costs.
• Problems with access to legal aid/legal services. These issues are further exacerbated by the cost of living crisis, and the increase in families/children living in poverty. There is a need for a clear policy on when children can access legal aid, and it should be free for children and not dependent on the income of their parents, particularly when there is a conflict of interest between parents and children. In the OCO Alternative Report to UNCESCR, we raised that victims of domestic violence do not have a right to mandatory free legal aid, and this might prevent them from seeking justice.
• Civil legal aid does not cover legal issues associated with housing, which impacts on the access to justice of children living in emergency accommodation/unsecure or substandard housing.

 

Other barriers

• Lack of disaggregated data on children and the justice system[4], including on access to justice and effective remedies, the types of children engaged with the system, the outcomes of those processes, the child’s experience of the process, etc.
• Lack of child-friendly avenues for accessing justice and remedies for breaches of rights, including alternative routes such as complaints mechanisms, which are primarily targeted at adults. For example, traditionally National Human Rights Institutions (OCO included) don’t intervene if a child complains against a private body. This limitation means children cannot access effective remedies.
  Liefaard[5] notes that “child-sensitive” access to justice involves three elements: child-friendly information, child participation in proceedings, and child-friendly remedies. These elements are reflected in the Council of Europe Guidelines on Child Friendly Justice, which we encourage the Committee to take into consideration when drafting GC.27.
  In Ireland there’s concern that access to 24-hour out-of-hours forensic examiners for child complainants of sexual violence is limited, and children may have to travel up to 5h to access such services. This is an issue given that forensic timeframe in prepubertal children is 72h. In relation to innovative approaches, in a Review of the Processing of Sexual Offences in Ireland, judges have stated an interest for a multi-agency approach and suggested a multi-agency strategy to deal with delays, particularly in the case of children. Judges felt that children must be moved through the system quickly and argued that joint interviews with children, as happens in the Barnahus pilot project, should be considered nationally to avoid multiple interviews.
• Lack of child friendly, age-appropriate information in relation to the legal process was raised as an issue by the YAP but also by multiple research sources. In consultations for the Family Justice Oversight Group, access to information emerged as a dominant message. Children called for improved communication, (e.g., with parents, schools) and greater involvement in the process. As a result, this was included in an action of the Family Justice Strategy. In Pieces of Us, children repeatedly emphasized the importance of child-friendly information. A research project undertaken by the Council of Europe about Children as defenders of human rights in Europe, showed that the majority of children don’t know where to find accessible information about how to go to court/find a lawyer. Only 17% of them knew or heard about child-friendly information available in courts, and this was thanks to information provided by the organisation of lawyers or civil society organisations. This was also raised by the OCO as an issue regarding children in Oberstown Detention Centre. During our visits it came to our attention that child defendants did not always understand the process, and did not have intermediaries there to help. For example, some had learning difficulties/problems communicating. They did not always fully understand the conditions of their bail and often could not communicate this to the Court/legal representatives. These difficulties resulted in increased rates of recidivism for these young people.
• Lack of training for legal professionals in relation to children’s rights and the specific needs and vulnerabilities of children. This was also raised by the YAP and was extensively covered in multiple sources accessed. Jurisprudence from the ECHR has noted that effective participation in the courtroom presupposes that the accused has a broad understanding of the nature of the trial process, including the significance of any penalty which may be imposed. Therefore, juvenile defendants must be, in any case, represented by skilled lawyers experienced in dealing with children.[6]
• Lack of adequate infrastructure to support the needs of children. Evidence suggests that while isolated examples of good facilities exist, the majority of District Court child care proceedings take place in inadequate physical facilities (lack of space, privacy, poor acoustics, inadequate separation from criminal cases, unsafe, anxiety-inducing), which negatively impacts the conduct of the proceedings, and professionals/families involved.[7] Regarding facilities, the YAP spoke not only about the courts but also about Garda stations, and principals’ offices. Garda stations were described as often empty, short-staffed, scary and not open or friendly for children. Similarly, the Principal’s office was described as – not a welcoming space, “terrifying”, while guidance counsellors’ offices were described as safer, friendly spaces, with comfortable seats. Courts were described as intimidating and “made to make you feel small’.
  When asked, what would the courts look like in an ideal world, the YAP’s views included:
  • “Sea foam green”, use comforting, calming colours instead of browns, reds;
  • “They would be bright and welcoming. One party would not dominate the other to allow for a comforting place of communication, everyone would feel on the same level. Casual clothing, colourful and warm: small but not cluttered for a less feeling of isolation”;
  • Outside of the courtroom, there should be child-friendly spaces, break rooms and sensory rooms for friends, parents, and people you trust.
• Lack of appropriate placements. Through our complaints and investigations function, the OCO has encountered children in special care being detained beyond need, depriving children of their liberty. There have been High Court proceedings whereby the judge has extended a special care order on the basis of ‘best interests’ – i.e. better the child is in secure care than the alternative because there is a lack of stepdown/appropriate placements. We have concerns regarding children in this situation and how can they have their rights vindicated effectively.

 

Groups of children particularly disadvantaged in exercising their right to access to justice and effective remedies

• Migrant children. In an OCO report the lack of access to legal advice and representation was identified as a barrier for children obtaining a secure immigration status in the State, be it as a refugee or other residence status. A key recommendation was facilitating access for migrant children to legal aid/legal advice. Lack of access to interpreter services is also a barrier, which was highlighted by the YAP.
• Children from low-income families. The OCO report on Unmet Needs noted that there is an inequity in seeking remedies for breaches of legal obligations towards children. Families with more resources to bring legal challenges are prioritised unlike children from low income families.
• Children with disabilities. Research shows that barriers include infrastructural barriers such as lack of physical access to buildings and procedural barriers such as a lack of support systems, lack of accessible information, lack of specialised training, lack of awareness of the rights of persons and children with disabilities, and negative attitudes towards the inclusion of persons with disabilities with disabilities in proceedings.
• Traveller children. Research shows that Travellers report hearing expressions of overt racism by Gardaí and judges. The levels of trust that Travellers have in the Gardaí is approximately half that of the general population, and they have a significantly lower level of trust in judges than the general population has in the legal system.

 

 

 

References:

[1] Kilkelly U., Lundy L. and Byrne B., Incorporating the UNCRC into national law (2021) p.180.

[2] O’Mahony C., “Statement to Oireachtas Joint Committee on Justice and Equality” (2019) p.4

[3] See Making Rights Real for Children: A Children’s Rights Audit of Irish law, pp 25-41.  This source also outlines the contrasting position in England, Wales and Scotland, whereby children have legal standing in certain circumstances.

[4] Coulter C., Editorial: Transparency and Accountability in a Reformed System of Family Justice (2022) 25(1) IJFL 1.

[5] Ton Liefaard, Access to Justice for Children: Towards a Specific Research and Implementation Agenda.

[6] ECHR (Grand Chamber), judgment of 16 December 1999, T. v. UK, No. 24724/94, paragraph 88, and judgment of 16 December 1999, V. v. UK, No. 24888/94, paragraph 90.

[7] Irish Journal of Family Law (2016) 19 (4), Child Care Proceedings and Family-Friendly Justice: The Problem with Court Facilities.

• Lúnasa 2024