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.
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 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 children’s rights-based approach to case work involving young clients.
What do we mean by a '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 point, 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 children’s 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:
All of the research detailing a children’s rights-based approach can be distilled down to three components:
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.
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.
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 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 representing 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, 2018).
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 individual rights. 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’.
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:
Our training can help people understand and implement the UNCRC’s Guidelines.
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 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 the relevant 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 of 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
- Blanchet-Cohen, N. and Bedeau, C., “Towards a Rights-Based Approach to Youth Pro-grams: Duty-Bearers’ Perspectives”, Children and Youth Services Review, 2014 (38), 75–81.
- Collins, T. and Paré, M. ‘A Child Rights-Based Approach to Anti-Violence Efforts in Schools’ International Journal of Children’s Rights (24), 2016, 764-802
- Daly, A., Children, Autonomy and the Courts, 2018 (7), Brill.
- Freeman, M., ‘Why It Remains Important to Take Children’s Rights Seriously’, Interna-tional Journal of Children’s Rights 2007 15(5), 5–23.
- 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, 2012, Oxford: Oxford University Press.
- A Nolan, ‘The Child as “Democratic Citizen” : Challenging the “Participation Gap”’, 2010, Public Law (767)
- Stalford, H., Hollingsworth, K. and Gilmore, S. (eds) Rewriting Children’s Rights Judgments: From Academic Vision to New Practice, 2017, Oxford: Hart Publishing)
- Tobin, J. ‘Justifying Children’s Rights’, 2013 (21) International Journal of Children’ s Rights (395).