About this online tool
How and why was this online tool developed?
This online training tool is designed to support legal practitioners in making the legal process more sensitive to the rights and needs of children. It has been developed as part of a 2-year project, funded by the Fundamental Rights and Citizenship Programme of the European Commission.
It has involved observing and hearing from legal practitioners as they work through live cases involving children and young people. Through doing this, we have learned about the practical, procedural, legal and personal challenges that lawyers face when working with child clients, and explored the various techniques that lawyers can use to overcome them.
We have also learned from children and young people themselves about their experiences of the legal process, and about what aspects of the process they would like to change to make it less traumatic, less confusing and more meaningful for them.
The modules included in this training tool reflect different types of justice proceedings, including immigration, family, community care and criminal justice. They focus on aspects of the legal process that present particular opportunities for lawyers to apply a child rights-based approach to case work involving young clients.
The starting position for this training is that a children’s rights-based approach to the legal process significantly strengthens lawyers’ capacities to work effectively with children and, importantly, enhances the experiences and outcomes not only for their child clients but for others involved in the process.
What do we mean by children's rights-based approach to the legal process?
In basic terms, ‘children’s rights’ refers to the range of civil, political, social, economic and cultural rights that pertain to children and childhood. These rights are set out in the UN Convention on the Rights of the Child 1989 (UNCRC), which was ratified by the UK in 1991. The UNCRC is a key reference points, therefore, in defining the basic standards and conditions of protection, autonomy and respect that enable children to thrive in the present and develop to their fullest potential in the future.
A child rights approach is defined by the United Nations Committee on the Rights of the Child, the body responsible for monitoring implementation of the UNCRC across all ratifying states, as:
General Comment 13
...one which furthers the realization of the rights of all children as set out in the Convention by developing the capacity of duty bearers to meet their obligations to respect, protect and fulfil rights (art. 4) and the capacity of rights holders to claim their rights, guided at all times by the rights to non-discrimination (art. 2), consideration of the best interests of the child (art. 3, para. 1), life, survival and development (art. 6), and respect for the views of the child (art. 12). Children also have the right to be directed and guided in the exercise of their rights by caregivers, parents and community members, in line with children’s evolving capacities (art. 5). This child rights approach is holistic and places emphasis on supporting the strengths and resources of the child him/herself and all social systems of which the child is a part: family, school, community, institutions, religious and cultural systems. (General Comment No. 13 (2011), para 59).
All of the research detailing a children’s rights-based approach can be distilled down to three components:
- Recognition that all children have human rights which are enshrined in international and domestic law that have to be upheld in procedural and substantive terms. This is especially important when it comes to children because it takes more effort and attention. Whilst some children’s rights apply equally to adults (such as the right to a fair trial), they have to be interpreted and applied in a manner that responds to children’s specific interests and needs. Other rights are specific to children (such as rights related to adoption, or the right to know and be cared for by one’s parents) and need to be explicitly recognised and implemented in accordance with clear children’s rights principles and processes. It is therefore imperative that lawyers have a solid grasp of what those principles and processes involve.
- A children’s rights-based approach requires efforts to build capacities among adults working with children. Whilst states and state authorities are duty bearers under international law, they have an obligation to support those working directly with children to ensure that their rights can be properly fulfilled. This includes ensuring that legal practitioners working with children receive appropriate training and education as to what their children’s rights obligations are, and have sufficient resources and support to put this into effect in practice.
- A children’s rights-based approach regards children as active rights-holders and agents shaping their own lives rather than mere passive objects of protection. Children, therefore, have to be provided with the support and opportunities to enhance their understanding of legal proceedings (), to actively use their rights and to bring others to account when violations occur. But this does not mean that children act in isolation from others; an important aspect of a children’s rights-based approach is supporting others, particularly parents, siblings and wider family and community play in enabling children to fulfil their rights (Daly, 2018; Collins and Paré, 2016: 775).
Why is it important to adopt a children’s rights-based approach
to justice proceedings?
Adopting a children’s rights based approach to legal practice is important for the following reasons:
- First, it is difficult for children to acquire full legal capacity or autonomy to act on their own behalf; they generally depend on adults to support them in asserting their rights. Legal practitioners play a role in ensuring that the rights that children have on paper can be meaningfully and robustly enforced in practice.
- Second, children are still developing physically, emotionally and psychologically, making them more vulnerable to rights violations, and so strong mechanisms need to be in place to protect them (Collins and Paré, 2016: 767). This applies equally in the context of legal proceedings where procedural irregularities or a prioritisation of others’ rights (such as those of the parents or the public authorities) can compound children’s vulnerabilities and undermine their rights. Lawyers therefore play a critical role in presenting and defending children against such violations through judicial and other formal proceedings (Stalford, Hollingsworth and Gilmore, 2017; Nolan, 2010).
- Third, in legal proceedings children are commonly treated differently from adults. They may not be permitted to instruct lawyers directly, and may not be allowed to be present in formal hearings. Courts also have powers in respect of children which they do not have in respect of adults, such as placing children in secure care and making orders regarding their upbringing. Though there may be good reasons for it, children are routinely denied the autonomy that adults take for granted and so it is important that they have a firm advocate for their wishes (Daly, 2017).
- Finally, children’s rights are distinct from the rights of adults and require specific, individual attention. This is important in the context of legal proceedings where there is a tendency to conflate the rights and interests of children with those of their parents and siblings, and to make generalisations about the interests of children without due regard to their. Lawyers therefore have a duty to respond to and represent the unique characteristics and circumstances of their child clients.
How can lawyers apply a children’s rights-based approach to their
case work involving children?
A children’s rights-based approach must further the realization of children’s rights in practice (Lundy and McEvoy, 2012: 78). In other words, it has to make a positive difference to the way in which children experience the justice process. This vision of a children’s rights based approach to the justice system is now commonly referred to as ‘Child Friendly Justice’.
Child friendly justice is defined as:
...justice systems which guarantee the respect and the effective implementation of all children's rights at the highest attainable level…. It is, in particular, justice that is accessible, age appropriate, speedy, diligent, adapted to and focused on the needs and rights of the child, respecting the rights of the child including the rights to due process, to participate in and to understand the proceedings, to respect for private and family life and to integrity and dignity.
In that sense, child friendly justice is very much focused on the practical and procedural mechanisms that can be put in place to give effect to children’s formal rights
The components of child friendly justice reflect existing legal obligations to which the UK is subject under international and European children’s rights law. For instance, virtually every provision of the UNCRC includes at least one reference to children’s rights in the context of justice proceedings, including children’s right:
- to appropriate (legal) assistance and direction;
- to participate in the decision-making process;
- to the avoidance of undue delay; and
- to be protected before, during and after justice proceedings.
The UN Committee on the Rights of the Child has fleshed out what these obligations entail through a series of General Comments (detailed guidance on how to interpret and apply the substantive provisions of the UNCRC) including:
- General Comment No. 12 on the right of the child to be heard;
- General Comment No. 6 on the Treatment of unaccompanied and separated children outside their country of origin
- General Comment No. 10 on Children's rights in juvenile justice; and
- Committee on the Rights of the Child General Comment No. 5 on General measures of implementation for the Convention on the Rights of the Child.
International support for the development of a children’s rights-based approach to the justice processes has been further reinforced by the introduction, in 2010, of the Council of Europe Guidelines on Child Friendly Justice. These Guidelines were developed to enhance children’s access to and treatment in the legal process and amalgamate all of the international provisions – including the provisions of the UNCRC – into a single document. The priorities identified in the Guidelines are also based on consultation with over 4,000 children across Europe who have had experience of the legal process. They apply to a range of justice contexts, including family, immigration, criminal justice, public administration and civil proceedings and explain precisely how children’s rights should be upheld before, during and after legal proceedings.
But despite the Council of Europe’s efforts to map out precisely what a children’s rights based approach to justice proceedings involves, the Guidelines remain largely unknown to both professionals and children in the justice system. This is perhaps not surprising; the Guidelines run to 15 pages and just under 6,000 words, including a preamble, six main sections and 83 sub-sections!
As a result, whilst some practitioners have a strong instinct, developed through training and experience, as to how to bring children’s rights-based approaches to bear on their day-to-day practice, the majority do not. Children, therefore, continue to experience routine violations of their rights during the course of legal proceedings which can compound their vulnerabilities and hamper opportunities to resolve their cases effectively.
This tool attempts to address this gap. Its aim is to develop basic skills among practitioners to enable them to adopt a children’s rights based approach to their work and to raise awareness of how this might can make a difference, both to the process and to outcomes.
Structure of this training tool and how to use it
This online tool is composed of six modules, each lasting approximately 1 hour. These modules identify key opportunities to apply a children’s rights-based approach during the course of your own case work.
You may wish to work through the modules systematically as a group (ideally with colleagues from your firm), or there may be a particular module that will be more immediately useful to your individual case work, in which case you can jump straight to it. You could suggest to your firm that the TALE training materials are used on a training day or in a lunch time seminar. Ideally, you should require all of your trainees, interns and new starters to work through the training materials, as well as more experienced colleagues who have had little or no prior formal training in this area.
There are numerous opportunities throughout the materials to reflect on your own practice and strengthen your firm’s approach when children are involved in legal cases. We also provide self-evaluation tools and exercises within each module. You should use these to try to gauge the extent to which your work is “child friendly”. We would recommend that you continue to return to this training and evaluation tool to refresh your knowledge and to monitor periodically your working methods.
All of the modules follow the same format and should each take approximately 1 hour to complete. Each module includes:
- A Learning Outcomes section which summarises exactly what you should get from the module.
- Real life accounts from children and practitioners of their experiences in relation to the issues covered by the module.
- Summaries of relevant the international, European and domestic Law and Regulation relating to children’s rights.
- Short Reflective Exercises and case studies for you to work through either on your own or with fellow legal practitioners.
- Key Points to consider integrating into your practice to achieve a more children’s rights-based approach to that particular aspect of your case work.
- A Moving Forward commitment by which you can implement concrete changes in your practice. These commitments can be used as a basis for ongoing monitoring to evaluate periodically the extent to which you and your firm are achieving a children’s rights-based approach to your work.
Each module draws on information from four sources:
- What the law says: i.e. the international, European and domestic legal framework and guidance relating to children’s rights.
- What children say: i.e. based on the accounts children who have been involved in a range of justice proceedings including immigration, criminal justice, public and private family proceedings and community care.
- What legal practitioners say: i.e. based on honest reflections and constructive suggestions from lawyers specialising in case work involving children and young people.
- What research says: i.e. academic and civil society research into different aspects of the legal process involving children.
The training materials, where relevant, draw out differences between diverse areas of practice, but there are also many common threads. As such, the training materials should be of use to all legal practitioners whose work involves children in any area of legal practice.
Further reading on a children’s rights-based approach and why it is important
Lundy, L., and L. McEvoy, “Childhood, the United Nations Convention on the Rights of the Child and Research: What Constitutes a ‘Rights-Based’ Approach” in M. Freeman (ed.), Law and Childhood Studies: Current Legal Issues (Oxford: Oxford University Press, 2012).