m o n o g r a p h

The guidelines on child-friendly justice, and their explanatory memorandum,

were adopted by the Council of Europe in 2010. Based on existing inter- 5
5
national and European standards, in particular the United Nations Convention
on the Rights of the Child and the European Convention on Human Rights,

Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice

the guidelines are designed to guarantee children’s effective access to and
adequate treatment in justice. They apply to all the circumstances in which
children are likely, on any ground and in any capacity, to be in contact with
the criminal, civil or administrative justice system. They recall and promote
the principles of the best interests of the child, care and respect, participation,
equal treatment and the rule of law. The guidelines address issues such as infor-
mation, representation and participation rights, protection of privacy, safety, a
multidisciplinary approach and training, safeguards at all stages of proceedings
and deprivation of liberty.
The 47 Council of Europe member states are encouraged to adapt their
legal systems to the specific needs of children, bridging the gap between

BUILDING A EUROPE FOR AND WITH CHILDREN

internationally agreed principles and reality. To that end, the explanatory
memorandum offers examples of good practices and proposes solutions to
address and remedy legal and practical gaps in justice for children.
These guidelines form an integral part of the Council of Europe’s strategy on
children’s rights and its programme “Building a Europe for and with children”.
A series of promotion, co-operation and monitoring activities are planned in
member states in view of ensuring effective implementation of the guidelines
for the benefit of all children.

Guidelines of the
www.coe.int
Committee of Ministers
of the Council of Europe
The Council of Europe has 47 member states, covering virtually the entire
continent of Europe. It seeks to develop common democratic and legal on child-friendly justice
principles based on the European Convention on Human Rights and other
Council of Europe Publishing

reference texts on the protection of individuals. Ever since it was founded

in 1949, in the aftermath of the Second World War, the Council of Europe
has symbolised reconciliation.

ISBN 978-92-871-7274-7

http://book.coe.int
e15/US$30 Council of Europe Publishing
Guidelines
of the Committee of Ministers
of the Council of Europe
on child-friendly justice

adopted by the Committee of Ministers

of the Council of Europe
on 17 November 2010
and explanatory memorandum

The Council of Europe programme

“Building a Europe for and with chidren”

www.coe.int/children

Council of Europe Publishing

Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice Contents

French edition :
Lignes directrices du Comité des Ministres du Conseil de l’Europe sur une
justice adaptée aux enfants

ISBN 978-92-871-7273-0 Contents

Preface ....................................................................................................................... 7

First part –
Reprodution of the texts in this publication is authorised provided the full title and Guidelines of the Committee of Ministers of
the source, namely the Council of Europe, are cited. If they are intended to be used
for commercial purposes or translated into one of the non-official languages of the
the Council of Europe on child-friendly justice ........ 11
Council of Europe, please contact [email protected].
Preamble .................................................................................................................... 13
I. Scope and purpose ........................................................................................ 16
II. Definitions ......................................................................................................... 17
III. Fundamental principles ........................................................................ 17
The Council of Europe programme “Building a Europe for and with children” was
set up to secure and promote children’s human rights, and protect children from all A. Participation ................................................................................................ 17
forms of violence. B. Best interests of the child ......................................................................... 18

www.coe.int/children C. Dignity ............................................................................................................. 18

D. Protection from discrimination .............................................................. 19
E. Rule of law ..................................................................................................... 19
IV. C
 hild-friendly justice before, during ....................................
and after judicial proceedings .......................................................... 20
A. General elements of child-friendly justice ........................................... 20
1. Information and advice .......................................................................... 20
2. Protection of private and family life ..................................................... 22
Cover design and layout: Documents and Publications Production Department 3. Safety (special preventive measures) .................................................. 22
(SPDP), Council of Europe 4. Training of professionals ........................................................................ 23
Illustrations : Eric Puybaret 5. Multidisciplinary approach .................................................................... 23
6. Deprivation of liberty ............................................................................ 24
Council of Europe Publishing
F-67075 Strasbourg Cedex B. Child-friendly justice before judicial proceedings ........................... 25
http://book.coe.int C. Children and the police .............................................................................. 25
D. Child-friendly justice during judicial proceedings .......................... 26
ISBN 978-92-871-7274-7
© Council of Europe, October 2011 1. Access to court and to the judicial process ......................................... 26
Printed at the Council of Europe 2. Legal counsel and representation ......................................................... 27

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Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice Contents

3. Right to be heard and to express views ............................................... 28 IV. C

 hild-friendly justice before, ................................................
4. Avoiding undue delay ............................................................................. 28 during and after judicial proceedings .......................................... 58
5. O
 rganisation of the proceedings, child-friendly ......................................
A. General elements of child-friendly justice ........................................... 58
environment and child-friendly language ............................................ 29
1. Information and advice .......................................................................... 58
6. Evidence/statements by children ......................................................... 30
2. Protection of private and family life ..................................................... 61
E. Child-friendly justice after judicial proceedings .............................. 31
3. Safety (special preventive measures) .................................................. 64
V. Promoting other child-friendly actions ......................................... 33 4. Training of professionals ........................................................................ 65
VI. Monitoring and assessment ................................................................. 34 5. Multidisciplinary approach .................................................................... 66
6. Deprivation of liberty ............................................................................. 66
B. Child-friendly justice before judicial proceedings ........................... 69
Second part –
Explanatory memorandum ................................................................. 35 C. Children and the police .............................................................................. 72
D. Child-friendly justice during judicial proceedings .......................... 73
General comments ...................................................................................... 37 1. Access to court and to the judicial process ......................................... 74
2. Legal counsel and representation ......................................................... 77
Why a new instrument? .................................................................................. 37 3. Right to be heard and to express views ............................................... 79
Background .............................................................................................................. 38 4. Avoiding undue delay ............................................................................. 83
5. O
 rganisation of the proceedings, child-friendly environment
Working method ................................................................................................... 38 and child-friendly language ................................................................... 84
Drafting process .................................................................................................. 39 6. Evidence/statements by children ......................................................... 87

Consultation of stakeholders ..................................................................... 40 E. Child-friendly justice after judicial proceedings .............................. 90

V. Promoting other child-friendly actions ......................................... 93
Consultation of children and young people ..................................... 40
 onitoring and assessment ................................................................. 94
VI. M
Structure and content ..................................................................................... 42

Introduction ...................................................................................................... 45

Explanatory memorandum ................................................................ 49

Preamble .................................................................................................................... 49
I. Scope and purpose ........................................................................................ 49
II. Definitions ......................................................................................................... 49
III. Fundamental principles ........................................................................ 50
A. Participation ................................................................................................. 50
B. Best interests of the child ......................................................................... 53
C. Dignity ............................................................................................................. 55
D. Protection from discrimination .............................................................. 55
E. Rule of law ..................................................................................................... 56

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Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice Foreword

Foreword

Don’t walk in front of me; I may not follow.

Don’t walk behind me; I may not lead.
Walk beside me and be my friend.
Attributed to Albert Camus

Divorce, adoption, migration, violence. Nowadays, every child is

likely to come into contact with the justice system in one way or
another. For many, it is a very unpleasant experience, when it could
be and should be otherwise and when many obstacles and sources of
unnecessary distress could be lifted. Although core principles have
been successfully set at international and European levels, it cannot
be said that justice is always friendly to children and youth. In direct
response to a broad consultation instigated by the Council of Europe,
children and youth reported a general mistrust of the system, and
pointed out many shortcomings such as intimidating settings, lack of
age-appropriate information and explanations, a weak approach to
the family as well as proceedings that are either too long or, on the
contrary, too expeditious.

The Council of Europe adopted the guidelines on child-friendly justice

specifically to ensure that justice is always friendly towards children,
no matter who they are or what they have done. Considering that a
friend is someone who treats you well, who trusts you and whom you
can trust, who listens to what you say and to whom you listen, who
understands you and whom you understand. A true friend also has
the courage to tell you when you are in the wrong and stands by you
to help you work out a solution. A child-friendly justice system should
endeavour to replicate these ideals.

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Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice Foreword

A child-friendly justice system must not “walk” in front of children; words without endangering the reliability of justice or the best interests
it must not leave them behind of the child. It is age-sensitive, tailored to children’s needs and
guarantees an individualised approach without stigmatising or labelling
It treats children with dignity, respect, care and fairness. It is
children. Child-friendly justice is about fostering a responsible
accessible, understandable and reliable. It listens to children, takes
system solidly anchored in a professionalism that safeguards the
their views seriously and makes sure that the interests of those who
good administration of justice and thereby inspires trust among all
cannot express themselves (such as babies) are also protected. It
adjusts its pace to children: it is neither expeditious nor lengthy, but parties and actors involved in the proceedings.
reasonably speedy. The guidelines on child-friendly justice are
intended to ensure all this and to guarantee that all children have A child-friendly justice system is on the side of children offering
adequate access to and treatment in justice in a respectful and help provided by competent professionals
responsive manner.
Justice systems throughout Europe are full of competent and caring
Kindness and friendliness towards children aid in their protection policy makers and legal professionals – judges, law enforcement
officials, social and health workers, child-rights advocates, parents
Repeated interviews, intimidating settings and procedures, discrim- and caregivers – eager to receive and exchange guidance in order to
ination: a plethora of such practices augment the pain and trauma of enhance their daily practice in the best interests of children. Because
children who may already be in great distress and in need of protection. they stand on the frontline of children’s rights and they can make a
A child-friendly justice system brings relief and redress; it does not genuine difference for children on a daily basis, this publication
inflict additional pain and hardship and it does not violate children’s contains – in addition to the core text of the guidelines – an explanatory
rights. Above all, children between birth and the age of 17 – be memorandum setting out samples of case law from the European
they a party to proceedings, a victim, a witness or an offender – Court of Human Rights and concrete examples of good practice
should benefit from the “children first” approach. The guidelines on inspired by and for professionals working with children in justice.
child-friendly justice were drafted to protect children and youth
from secondary victimisation by the justice system, notably by fostering The adoption of the guidelines on child-friendly justice is a significant
a holistic approach to the child, based on concerted multidisciplinary step forward. However, the task will only be complete when change
working methods. can be witnessed in practice. To achieve this, it is of paramount
importance that the guidelines are promoted, disseminated and
If a child-friendly justice system does not “walk” in front of
monitored, and that they underpin policy making at national level.
children, it does not “walk” behind them either
Key international partners such as the European Union and UNICEF
Europe has witnessed tragic miscarriages of justice where children’s are already involved in the first steps to promote the guidelines, as
views were given disproportionate weight, to the detriment of other are a number of national actors and civil society, who are picking
parties’ rights or of the children’s own best interests. In such cases, up speed in raising awareness of the guidelines among major
the better became the enemy of the good. As children and youth stakeholders.
themselves declare, child-friendly justice is not about being over-
friendly or overprotective. Nor is it about leaving children alone with It is my hope that this publication will provide encouragement for,
the burden of making decisions in lieu of adults. A child-friendly and facilitate, the task of the widest possible circle of professionals
system protects the young from hardship, makes sure that they have and policy makers at national and local levels who carry the
a place and say, gives due consideration and interpretation to their responsibility of making the justice system more child friendly.

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Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice

Justice should be children’s friend. It should not walk in front of

them, as they may not follow. It should not walk behind children, as
they should not be burdened with the responsibility to lead. It should
just walk beside them and be their friend.

The 47 member states of the Council of Europe adopted the guidelines

on child-friendly justice as a promise of justice and friendship to every
child. Now is the time to make every effort to honour this promise.

Maud de Boer Buquicchio

Deputy Secretary General
Council of Europe

First part
Guidelines of the Committee
of Ministers of the Council of Europe
on child-friendly justice
10
Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice

Guidelines

(Adopted by the Committee of Ministers on 17 November 2010

at the 1098th meeting of the Ministers’ Deputies)

Preamble

The Committee of Ministers,

Considering that the aim of the Council of Europe is to achieve a

greater unity between the member states, in particular by promoting
the adoption of common rules in legal matters;

Considering the necessity of ensuring the effective implementation

of existing binding universal and European standards protecting
and promoting children’s rights, including in particular:
•
the 1951 United Nations Convention Relating to the Status of
Refugees;
• the 1966 International Covenant on Civil and Political Rights;
•
the 1966 International Covenant on Economic, Social and Cultural
Rights;
• the 1989 United Nations Convention on the Rights of the Child;
• the 2006 United Nations Convention on the Rights of Persons with
Disabilities;
• the Convention for the Protection of Human Rights and Fundamental
Freedoms (1950, ETS No. 5) (hereafter the “ECHR”);
•
the European Convention on the Exercise of Children’s Rights
(1996, ETS No. 160);
• the revised European Social Charter (1996, ETS No. 163);
• the Council of Europe Convention on Contact concerning Children
(2003, ETS No. 192);

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Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice

• the Council of Europe Convention on the Protection of Children Considering the importance of safeguarding children’s rights by
against Sexual Exploitation and Sexual Abuse (2007, CETS No. 201); United Nations instruments such as:
• the European Convention on the Adoption of Children (Revised) • the United Nations Standard Minimum Rules for the Administration
(2008, CETS No. 202); of Juvenile Justice (“The Beijing Rules”, 1985);
Considering that, as guaranteed under the ECHR and in line with the • the United Nations Rules for the Protection of Juveniles Deprived
case law of the European Court of Human Rights, the right of any of their Liberty (“The Havana Rules”, 1990);
person to have access to justice and to a fair trial – in all its components
(including in particular the right to be informed, the right to be •
the United Nations Guidelines for the Prevention of Juvenile
heard, the right to a legal defence, and the right to be represented) – Delinquency (“The Riyadh Guidelines”, 1990);
is necessary in a democratic society and equally applies to children, • the United Nations Guidelines on Justice in Matters involving Child
taking however into account their capacity to form their own views; Victims and Witnesses of Crime (ECOSOC Res 2005/20, 2005);
Recalling relevant case law of the European Court of Human Rights, • the Guidance Note of the United Nations Secretary-General: United
decisions, reports or other documents of other Council of Europe Nations Approach to Justice for Children (2008);
institutions and bodies including recommendations of the European
Committee for the Prevention of Torture and Inhuman or Degrading •
the United Nations Guidelines for the Appropriate Use and
Conditions of Alternative Care for Children (2009);
Treatment or Punishment (CPT), and statements and opinions of
the Council of Europe Commissioner for Human Rights and various • the Principles relating to the Status and Functioning of National
recommendations of the Parliamentary Assembly of the Council Institutions for Protection and Promotion of Human Rights (“The
of Europe; Paris Principles”);

Noting various recommendations of the Committee of Ministers to

Recalling the need to guarantee the effective implementation of
member states in the area of children’s rights, including existing binding norms concerning children’s rights, without
Recommendation Rec(2003)5 on measures of detention of asylum preventing member states from introducing or applying higher
seekers, Recommendation Rec(2003)20 concerning new ways of standards or more favourable measures;
dealing with juvenile delinquency and the role of juvenile justice,
Recommendation Rec(2005)5 on the rights of children living in Referring to the Council of Europe Programme “Building a Europe
residential institutions, Recommendation Rec(2006)2 on the for and with children”;
European Prison Rules, Recommendation CM/Rec(2008)11 on the
European Rules for juvenile offenders subject to sanctions or Acknowledging the progress made in member states towards
measures and Recommendation CM/Rec(2009)10 on integrated implementing child-friendly justice;
national strategies for the protection of children from violence;
Noting, nonetheless, existing obstacles for children within the justice
Recalling Resolution No. 2 on child-friendly justice, adopted at the system such as, among others, the non-existing, partial or conditional
28th Conference of European Ministers of Justice (Lanzarote, legal right to access to justice, the diversity in and complexity of
October 2007); procedures, possible discrimination on various grounds;

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Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice

Recalling the need to prevent possible secondary victimisation II. Definitions

of children by the judicial system in procedures involving or
affecting them; For the purposes of these guidelines on child-friendly justice (here-
after “the guidelines”):
Inviting member states to investigate existing lacunae and problems
a. a “child” means any person under the age of 18 years;
and identify areas where child-friendly justice principles and practices
could be introduced; b. a “parent” refers to the person(s) with parental responsibility,
according to national law. In case the parent(s) is/are absent
Acknowledging the views and opinions of consulted children or no longer holding parental responsibility, this can be a
throughout the member states of the Council of Europe; guardian or an appointed legal representative;
c. 
“child-friendly justice” refers to justice systems which
Noting that the guidelines aim to contribute to the identification of guarantee the respect and the effective implementation of
practical remedies to existing shortcomings in law and in practice; all children’s rights at the highest attainable level, bearing
in mind the principles listed below and giving due consid-
Adopts the following guidelines to serve as a practical tool for member
eration to the child’s level of maturity and understanding
states in adapting their judicial and non-judicial systems to the
and the circumstances of the case. It is, in particular, justice
specific rights, interests and needs of children and invites member
that is accessible, age appropriate, speedy, diligent, adapted
states to ensure that they are widely disseminated among all
to and focused on the needs and rights of the child, respecting
authorities responsible for or otherwise involved with children’s
the rights of the child including the rights to due process, to
rights in justice. participate in and to understand the proceedings, to respect
for private and family life and to integrity and dignity.

I. Scope and purpose

III. Fundamental principles
1. The guidelines deal with the issue of the place and role, and the
views, rights and needs of the child in judicial proceedings and in 1. The guidelines build on the existing principles enshrined in the
alternatives to such proceedings. instruments referred to in the preamble and the case law of the
European Court of Human Rights.
2. The guidelines should apply to all ways in which children are likely
to be, for whatever reason and in whatever capacity, brought into 2. These principles are further developed in the following sections
contact with all competent bodies and services involved in imple- and should apply to all chapters of these guidelines.
menting criminal, civil or administrative law.
A. Participation
3. The guidelines aim to ensure that, in any such proceedings, all
rights of children, among which the right to information, to 1. The right of all children to be informed about their rights, to be
representation, to participation and to protection, are fully given appropriate ways to access justice and to be consulted and
respected with due consideration to the child’s level of maturity heard in proceedings involving or affecting them should be
and understanding and to the circumstances of the case. respected. This includes giving due weight to the children’s views
Respecting children’s rights should not jeopardise the rights of bearing in mind their maturity and any communication difficulties
other parties involved. they may have in order to make this participation meaningful.

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Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice

2. Children should be considered and treated as full bearers of rights 2. Children shall not be subjected to torture or inhuman or degrading
and should be entitled to exercise all their rights in a manner that treatment or punishment.
takes into account their capacity to form their own views and the
circumstances of the case.
D. Protection from discrimination

B. Best interests of the child 1. The rights of children shall be secured without discrimination on
any grounds such as sex, race, colour or ethnic background, age,
1. Member states should guarantee the effective implementation of language, religion, political or other opinion, national or social
the right of children to have their best interests be a primary origin, socio-economic background, status of their parent(s),
consideration in all matters involving or affecting them. association with a national minority, property, birth, sexual
2. In assessing the best interests of the involved or affected children: orientation, gender identity or other status.
a. their views and opinions should be given due weight; 2. Specific protection and assistance may need to be granted to more
b. a ll other rights of the child, such as the right to dignity, vulnerable children, such as migrant children, refugee and
liberty and equal treatment should be respected at all times; asylum-seeking children, unaccompanied children, children with
c. a comprehensive approach should be adopted by all relevant disabilities, homeless and street children, Roma children, and
authorities so as to take due account of all interests at stake, children in residential institutions.
including psychological and physical well-being and legal,
social and economic interests of the child. E. Rule of law
3. The best interests of all children involved in the same procedure 1. The rule of law principle should apply fully to children as it does to
or case should be separately assessed and balanced with a view to adults.
reconciling possible conflicting interests of the children.
2. Elements of due process such as the principles of legality and
4. W hile the judicial authorities have the ultimate competence and
proportionality, the presumption of innocence, the right to a fair
responsibility for making the final decisions, member states should
trial, the right to legal advice, the right to access to courts and the
make, where necessary, concerted efforts to establish multidisci-
right to appeal, should be guaranteed for children as they are for
plinary approaches with the objective of assessing the best interests
adults and should not be minimised or denied under the pretext of
of children in procedures involving them.
the child’s best interests. This applies to all judicial and non-
judicial and administrative proceedings.
C. Dignity
3. Children should have the right to access appropriate independent
1. Children should be treated with care, sensitivity, fairness and and effective complaints mechanisms.
respect throughout any procedure or case, with special attention
for their personal situation, well-being and specific needs, and with
full respect for their physical and psychological integrity. This
treatment should be given to them, in whichever way they have
come into contact with judicial or non-judicial proceedings or other
interventions, and regardless of their legal status and capacity in
any procedure or case.

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Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice

IV. Child-friendly justice before, h. the availability of protective measures;

during and after judicial proceedings i. t he existing mechanisms for review of decisions affecting
the child;
A. General elements of child-friendly justice j.
the existing opportunities to obtain reparation from the
offender or from the state through the justice process,
1. Information and advice through alternative civil proceedings or through other
processes;
1. F rom their first involvement with the justice system or other
competent authorities (such as the police, immigration, educational, k. the availability of the services (health, psychological, social,
social or health care services) and throughout that process, children interpretation and translation, and other) or organisations
and their parents should be promptly and adequately informed of, which can provide support and the means of accessing such
inter alia: services along with emergency financial support, where
a. their rights, in particular the specific rights children have applicable;
with regard to judicial or non-judicial proceedings in which l. any special arrangements available in order to protect as far as
they are or might be involved, and the instruments available possible their best interests if they are resident in another state.
to remedy possible violations of their rights including the
opportunity to have recourse to either a judicial or non-judicial 2. The information and advice should be provided to children in a
proceeding or other interventions. This may include manner adapted to their age and maturity, in a language which
information on the likely duration of proceedings, possible they can understand and which is gender and culture sensitive.
access to appeals and independent complaints mechanisms;
b. the system and procedures involved, taking into consideration 3. As a rule, both the child and parents or legal representatives should
the particular place the child will have and the role he or she directly receive the information. Provision of the information to the
may play in it and the different procedural steps; parents should not be an alternative to communicating the infor-
mation to the child.
c. the existing support mechanisms for the child when partici-
pating in the judicial or non-judicial procedures;
4. 
Child-friendly materials containing relevant legal information
d. t he appropriateness and possible consequences of given should be made available and widely distributed, and special infor-
in-court or out-of-court proceedings; mation services for children such as specialised websites and hel-
e. where applicable, the charges or the follow-up given to their plines established.
complaint;
5. 
Information on any charges against the child must be given
f. the time and place of court proceedings and other relevant promptly and directly after the charges are brought. This informa-
events, such as hearings, if the child is personally affected; tion should be given to both the child and the parents in such a
g. the general progress and outcome of the proceedings or way that they understand the exact charge and the possible
intervention; consequences.

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Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice

2. Protection of private and family life 12. P rofessionals working with and for children should, where
necessary, be subject to regular vetting, according to national
6. The privacy and personal data of children who are or have been law and without prejudice to the independence of the judiciary,
involved in judicial or non-judicial proceedings and other inter- to ensure their suitability to work with children.
ventions should be protected in accordance with national law.
This generally implies that no information or personal data may 13. Special precautionary measures should apply to children when
be made available or published, particularly in the media, which the alleged perpetrator is a parent, a member of the family or a
could reveal or indirectly enable the disclosure of the child’s primary caregiver.
identity, including images, detailed descriptions of the child or
the child’s family, names or addresses, audio and video records, etc. 4. Training of professionals

7. Member states should prevent violations of the privacy rights 14. A ll professionals working with and for children should receive
as mentioned under guideline 6 above by the media through necessary interdisciplinary training on the rights and needs of
children of different age groups, and on proceedings that are
legislative measures or monitoring self-regulation by the media.
adapted to them.
8. Member states should stipulate limited access to all records or
15. Professionals having direct contact with children should also be
documents containing personal and sensitive data of children, in
trained in communicating with them at all ages and stages of
particular in proceedings involving them. If the transfer of
development, and with children in situations of particular
personal and sensitive data is necessary, while taking into
vulnerability.
account the best interests of the child, member states should
regulate this transfer in line with relevant data protection
5. Multidisciplinary approach
legislation.
16. With full respect of the child’s right to private and family life,
9. W henever children are being heard or giving evidence in judicial
close co-operation between different professionals should be
or non-judicial proceedings or other interventions, where encouraged in order to obtain a comprehensive understanding of
appropriate, this should preferably take place in camera. As a the child, and an assessment of his or her legal, psychological,
rule, only those directly involved should be present, provided social, emotional, physical and cognitive situation.
that they do not obstruct children in giving evidence.
17. A common assessment framework should be established for
10. Professionals working with and for children should abide by the professionals working with or for children (such as lawyers,
strict rules of confidentiality, except where there is a risk of harm psychologists, physicians, police, immigration officials, social
to the child. workers and mediators) in proceedings or interventions that
involve or affect children to provide any necessary support to
3. Safety (special preventive measures) those taking decisions, enabling them to best serve children’s
interests in a given case.
11. In all judicial and non-judicial proceedings or other interven-
tions, children should be protected from harm, including intimi- 18. W hile implementing a multidisciplinary approach, professional
dation, reprisals and secondary victimisation. rules on confidentiality should be respected.

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Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice

6. Deprivation of liberty B. Child-friendly justice

before judicial proceedings
19. Any form of deprivation of liberty of children should be a measure of
last resort and be for the shortest appropriate period of time. 23. The minimum age of criminal responsibility should not be too
low and should be determined by law.
20. W hen deprivation of liberty is imposed, children should, as a
rule, be held separately from adults. When children are detained 24. A lternatives to judicial proceedings such as mediation, diversion
with adults, this should be for exceptional reasons and based (of judicial mechanisms) and alternative dispute resolution
solely on the best interests of the child. In all circumstances, should be encouraged whenever these may best serve the child’s
children should be detained in premises suited to their needs. best interests. The preliminary use of such alternatives should
not be used as an obstacle to the child’s access to justice.
21. Given the vulnerability of children deprived of liberty, the importance
of family ties and promoting the reintegration into society, 25. Children should be thoroughly informed and consulted on the
competent authorities should ensure respect and actively support opportunity to have recourse to either a court proceeding or
the fulfilment of the rights of the child as set out in universal and alternatives outside court settings. This information should also
European instruments. In addition to other rights, children in explain the possible consequences of each option. Based on
particular should have the right to: adequate information, both legal and otherwise, a choice should
be available to use either court procedures or alternatives for
a. m aintain regular and meaningful contact with parents, these proceedings whenever they exist. Children should be given
family and friends through visits and correspondence, the opportunity to obtain legal advice and other assistance in
except when restrictions are required in the interests of determining the appropriateness and desirability of the pro-
justice and the interests of the child. Restrictions on this posed alternatives. In making this decision, the views of the child
right should never be used as a punishment; should be taken into account.

b. 
receive appropriate education, vocational guidance and 26. Alternatives to court proceedings should guarantee an equivalent
training, medical care, and enjoy freedom of thought, level of legal safeguards. Respect for children’s rights as described
conscience and religion and access to leisure, including in these guidelines and in all relevant legal instruments on the
physical education and sport; rights of the child should be guaranteed to the same extent in
both in-court and out-of-court proceedings.
c. access programmes that prepare children in advance for
their return to their communities, with full attention given
to them in respect of their emotional and physical needs, C. Children and the police
their family relationships, housing, schooling and employment
possibilities and socio-economic status. 27. Police should respect the personal rights and dignity of all children
and have regard to their vulnerability, that is, take account of
22. The deprivation of liberty of unaccompanied minors, including their age and maturity and any special needs of those who may be
those seeking asylum, and separated children should never be under a physical or mental disability or have communication
motivated or based solely on the absence of residence status. difficulties.

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Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice

28. W henever a child is apprehended by the police, the child should 35. Any obstacles to access to court, such as the cost of the proceedings
be informed in a manner and in language that is appropriate to or the lack of legal counsel, should be removed.
his or her age and level of understanding of the reason for which
he or she has been taken into custody. Children should be 36. In cases of certain specific crimes committed against children, or
provided with access to a lawyer and be given the opportunity to certain aspects of civil or family law, access to court should be
contact their parents or a person whom they trust. granted for a period of time after the child has reached the age of
majority where necessary. Member states are encouraged to
29. 
Save in exceptional circumstances, the parent(s) should be
review their statutes of limitations.
informed of the child’s presence in the police station, given
details of the reason why the child has been taken into custody
and be asked to come to the station. 2. Legal counsel and representation

30. A
 child who has been taken into custody should not be 37. Children should have the right to their own legal counsel and
questioned in respect of criminal behaviour, or asked to make or representation, in their own name, in proceedings where there is,
sign a statement concerning such involvement, except in the or could be, a conflict of interest between the child and the
presence of a lawyer or one of the child’s parents or, if no parent parents or other involved parties.
is available, another person whom the child trusts. The parent or
this person may be excluded if suspected of involvement in the 38. Children should have access to free legal aid, under the same or
criminal behaviour or if engaging in conduct which amounts to more lenient conditions as adults.
an obstruction of justice.
39. Lawyers representing children should be trained in and know-
31. Police should ensure that, as far as possible, no child in their cus- ledgeable on children’s rights and related issues, receive ongoing
tody is detained together with adults. and indepth training and be capable of communicating with chil-
dren at their level of understanding.
32. Authorities should ensure that children in police custody are
kept in conditions that are safe and appropriate to their needs. 40. Children should be considered as fully fledged clients with their
own rights and lawyers representing children should bring
33. In member states where this falls under their mandate, prosecutors
should ensure that child-friendly approaches are used throughout forward the opinion of the child.
the investigation process.
41. Lawyers should provide the child with all necessary information
and explanations concerning the possible consequences of the
D. Child-friendly justice child’s views and/or opinions.
during judicial proceedings
42. In cases where there are conflicting interests between parents
and children, the competent authority should appoint either a
1. Access to court and to the judicial process
guardian ad litem or another independent representative to
34. As bearers of rights, children should have recourse to remedies represent the views and interests of the child.
to effectively exercise their rights or act upon violations of their
rights. The domestic law should facilitate where appropriate the 43. Adequate representation and the right to be represented inde-
possibility of access to court for children who have sufficient pendently from the parents should be guaranteed, especially
understanding of their rights and of the use of remedies to in proceedings where the parents, members of the family or
protect these rights, based on adequately given legal advice. caregivers are the alleged offenders.

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Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice

3. Right to be heard and to express views 51. In family law cases (for example parentage, custody, parental
abduction), courts should exercise exceptional diligence to avoid
44. Judges should respect the right of children to be heard in all mat- any risk of adverse consequences on the family relations.
ters that affect them or at least to be heard when they are deemed
to have a sufficient understanding of the matters in question. 52. W hen necessary, judicial authorities should consider the possibil-
Means used for this purpose should be adapted to the child’s ity of taking provisional decisions or making preliminary judg-
level of understanding and ability to communicate and take into ments to be monitored for a certain period of time in order to be
account the circumstances of the case. Children should be con- reviewed later.
sulted on the manner in which they wish to be heard.
53. In accordance with the law, judicial authorities should have the
45. Due weight should be given to the child’s views and opinion in possibility to take decisions which are immediately enforceable
accordance with his or her age and maturity. in cases where this would be in the best interests of the child.

46. The right to be heard is a right of the child, not a duty of the child. 5. Organisation of the proceedings, child-friendly
environment and child-friendly language
47. A child should not be precluded from being heard solely on the
basis of age. Whenever a child takes the initiative to be heard in 54. In all proceedings, children should be treated with respect for
a case that affects him or her, the judge should not, unless it is in their age, their special needs, their maturity and level of under-
the child’s best interests, refuse to hear the child and should listen standing, and bearing in mind any communication difficulties
to his or her views and opinion on matters concerning him or her they may have. Cases involving children should be dealt with in
in the case. non-intimidating and child-sensitive settings.

48. Children should be provided with all necessary information on 55. Before proceedings begin, children should be familiarised with
how effectively to use the right to be heard. However, it should be the layout of the court or other facilities and the roles and identities
explained to them that their right to be heard and to have their of the officials involved.
views taken into consideration may not necessarily determine
the final decision. 56. Language appropriate to children’s age and level of understanding
should be used.
49. Judgments and court rulings affecting children should be duly
reasoned and explained to them in language that children can 57. When children are heard or interviewed in judicial and non-judicial
understand, particularly those decisions in which the child’s proceedings and during other interventions, judges and other
views and opinions have not been followed. professionals should interact with them with respect and
sensitivity.
4. Avoiding undue delay
58. Children should be allowed to be accompanied by their parents
50. 
In all proceedings involving children, the urgency principle or, where appropriate, an adult of their choice, unless a reasoned
should be applied to provide a speedy response and protect the decision has been made to the contrary in respect of that
best interests of the child, while respecting the rule of law. person.

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Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice

59. Interview methods, such as video or audio-recording or pre-trial 66. When more than one interview is necessary, they should preferably
hearings in camera, should be used and considered as admissible be carried out by the same person, in order to ensure coherence
evidence. of approach in the best interests of the child.

60. Children should be protected, as far as possible, against images 67. The number of interviews should be as limited as possible and
or information that could be harmful to their welfare. In deciding their length should be adapted to the child’s age and attention span.
on disclosure of possibly harmful images or information to the 68. D irect contact, confrontation or interaction between a child
child, the judge should seek advice from other professionals, victim or witness with alleged perpetrators should, as far as pos-
such as psychologists and social workers. sible, be avoided unless at the request of the child victim.

61. Court sessions involving children should be adapted to the child’s 69. Children should have the opportunity to give evidence in criminal
pace and attention span: regular breaks should be planned and cases without the presence of the alleged perpetrator.
hearings should not last too long. To facilitate the participation of
70. The existence of less strict rules on giving evidence such as
children to their full cognitive capacity and to support their emo-
absence of the requirement for oath or other similar declarations,
tional stability, disruption and distractions during court ses-
or other child-friendly procedural measures, should not in itself
sions should be kept to a minimum. diminish the value given to a child’s testimony or evidence.
62. As far as appropriate and possible, interviewing and waiting 71. Interview protocols that take into account different stages of the
rooms should be arranged for children in a child-friendly child’s development should be designed and implemented to
environment. underpin the validity of children’s evidence. These should avoid
leading questions and thereby enhance reliability.
63. A
 s far as possible, specialist courts (or court chambers),
procedures and institutions should be established for children 72. With regard to the best interests and well-being of children, it
in conflict with the law. This could include the establishment of should be possible for a judge to allow a child not to testify.
specialised units within the police, the judiciary, the court 73. A child’s statements and evidence should never be presumed
system and the prosecutor’s office. invalid or untrustworthy by reason only of the child’s age.

6. Evidence/statements by children 74. The possibility of taking statements of child victims and witnesses
in specially designed child-friendly facilities and a child-friendly
64. 
Interviews of and the gathering of statements from children environment should be examined.
should, as far as possible, be carried out by trained professionals.
Every effort should be made for children to give evidence in the E. Child-friendly justice after judicial proceedings
most favourable settings and under the most suitable conditions,
having regard to their age, maturity and level of understanding 75. The child’s lawyer, guardian ad litem or legal representative
and any communication difficulties they may have. should communicate and explain the given decision or judgment
to the child in a language adapted to the child’s level of under-
65. A
 udiovisual statements from children who are victims or standing and should give the necessary information on possible
witnesses should be encouraged, while respecting the right of measures that could be taken, such as appeal or independent
other parties to contest the content of such statements. complaint mechanisms.

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Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice

76. National authorities should take all necessary steps to facilitate V. Promoting other child-friendly actions
the execution of judicial decisions/rulings involving and affecting
children without delay. Member states are encouraged to:
77. 
W hen a decision has not been enforced, children should be a. promote research into all aspects of child-friendly justice,
informed, possibly through their lawyer, guardian ad litem or including child-sensitive interviewing techniques and
legal representative, of available remedies either through non- dissemination of information and training on such
judicial mechanisms or access to justice. techniques;
78. Implementation of judgments by force should be a measure of last b. exchange practice and promote co-operation in the field of
resort in family cases when children are involved. child-friendly justice internationally;
79. A fter judgments in highly conflictual proceedings, guidance and c. promote the publication and widest possible dissemination
support should be offered, ideally free of charge, to children and of child-friendly versions of relevant legal instruments;
their families by specialised services. d. set up, or maintain and reinforce where necessary, information
80. Particular health care and appropriate social and therapeutic offices for children’s rights, possibly linked to bar associations,
intervention programmes or measures for victims of neglect, vio- welfare services, (children’s) ombudsmen, Non-governmental
lence, abuse or other crimes should be provided, ideally free of Organisations (NGOs), etc.;
charge, and children and their caregivers should be promptly e. facilitate children’s access to courts and complaint mechanisms
and adequately informed of the availability of such services. and further recognise and facilitate the role of NGOs and
81. The child’s lawyer, guardian or legal representative should have a other independent bodies or institutions such as children’s
mandate to take all necessary steps to claim for damages dur- ombudsmen in supporting children’s effective access to
ing or after criminal proceedings in which the child was a victim. courts and independent complaint mechanisms, both on a
Where appropriate, the costs could be covered by the state and national and international level;
recovered from the perpetrator. f. consider the establishment of a system of specialised judges
82. Measures and sanctions for children in conflict with the law and lawyers for children and further develop courts in which
should always be constructive and individualised responses to the both legal and social measures can be taken in favour of
committed acts, bearing in mind the principle of proportionality, children and their families;
the child’s age, physical and mental well-being and development g. develop and facilitate the use by children and others acting
and the circumstances of the case. The right to education,
on their behalf of universal and European human and
vocational training, employment, rehabilitation and reintegration
children’s rights protection mechanisms for the pursuit of
should be guaranteed.
justice and protection of rights when domestic remedies do
83. 
In order to promote the reintegration within society, and in not exist or have been exhausted;
accordance with the national law, criminal records of children h. make human rights, including children’s rights, a mandatory
should be non-disclosable outside the justice system on reaching
component in the school curricula and for professionals
the age of majority. Exceptions for the disclosure of such infor-
working with children;
mation can be permitted in cases of serious offences, inter alia
for reasons of public safety or when employment with children is i. develop and support systems aimed at raising the awareness
concerned. of parents on children’s rights;

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Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice

j. set up child-friendly, multi-agency and interdisciplinary

centres for child victims and witnesses where children could
be interviewed and medically examined for forensic
purposes, comprehensively assessed and receive all relevant
therapeutic services from appropriate professionals;
k. set up specialised and accessible support and information
services, such as online consultation, help lines and local
community services free of charge;
l. ensure that all concerned professionals working in contact
with children in justice systems receive appropriate support
and training, and practical guidance in order to guarantee
and implement adequately the rights of children, in particular
while assessing children’s best interests in all types of
procedures involving or affecting them.

VI. Monitoring and assessment

Member states are also encouraged to:
a. review domestic legislation, policies and practices to ensure
the necessary reforms to implement these guidelines;
b. to speedily ratify, if not yet done so, relevant Council of
Europe conventions concerning children’s rights;
c. 
periodically review and evaluate their working methods
within the child-friendly justice setting;
d. m
 aintain or establish a framework, including one or
more independent mechanisms, as appropriate, to promote
and monitor implementation of the present guidelines, in
accordance with their judicial and administrative systems;
e. ensure that civil society, in particular organisations, institutions
and bodies which aim to promote and to protect the rights of
the child, participate fully in the monitoring process.
Second part
Explanatory memorandum

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Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice Explanatory memorandum

General comments

Why a new instrument?

1. F
 or the Council of Europe, protecting children’s rights and
promoting child-friendly justice is a priority. The issue of
protection of children was addressed by the Action Plan of the
3rd Summit of Heads of State and Government of the Council of
Europe in Warsaw in 2005.

2. W hile a number of legal instruments exist at the international,

European and national levels, gaps remain both in law and in
practice, and governments and professionals working with children
are requesting guidance to ensure the effective implementation
of their standards. In the well-known cases opposing V. and T. and
the United Kingdom, two 10-year-old boys who had kidnapped
and battered to death a 2-year-old, were tried as adults, under
massive press coverage. The European Court of Human Rights
(hereinafter “the Court”) later found that the trial had been
incomprehensible and intimidating for the children who had
thus been unable to participate effectively in the proceedings
against them, and established a breach of Article 6 of the
European Convention on Human Rights (hereinafter the
“ECHR”), which guarantees the right to a fair trial. In the Sahin
v. Germany case, the Court found that the substantive violation
was the failure to hear the child’s own views, and indicated that
the national court had to take considerable steps to ensure
direct contact with the child and that, by this means only, can
the best interests of the child be ascertained.

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Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice Explanatory memorandum

3. These cases could have occurred in almost any Council of Europe 6. The Council of Europe started this work in 2008 with the preparation
member state. They illustrate the need to enhance access to of four expert reports assessing the challenges and obstacles faced
justice and improve the treatment of children in judicial and non- by children in accessing justice at national level in all sectors of
judicial proceedings, the importance of raising the knowledge and the judicial system. These reports were presented and used as a
awareness of professionals working with children in such basis for discussions at high-level Council of Europe conferences
proceedings and of providing them with adapted training in order held under the auspices of the Swedish chairmanship of the
to guarantee the best interests of the child, and the good Committee of Ministers, “Building a Europe for and with Children
administration of justice. – Towards a strategy for 2009-2011”, (Stockholm, 8-10
September 2008), and Spanish chairmanship of the Committee of
Ministers, “The protection of children in European justice sys-
Background tems”, (Toledo, 12-13 March 2009). The findings of the reports and
the conclusions of the conferences paved the way for the drafting
4. 
The following guidelines are the Council of Europe’s direct of the guidelines and provided valuable material for the Group of
response to Resolution No. 2 on child-friendly justice adopted at Specialists on child-friendly justice (CJ-S-CH) which was estab-
the 28th Conference of European Ministers of Justice (Lanzarote, lished to prepare the guidelines in 2009-10.
25-26 October 2007), which requested concrete guidance for the
member states in this field. The Committee of Ministers thus
instructed four Council of Europe bodies to prepare guidelines on
child-friendly justice (hereafter “the guidelines”) proposing Drafting process
solutions to assist member states in establishing judicial systems
responding to the specific needs of children, with a view to ensuring
7.This Group of Specialists was composed of 17 independent specialists
children’s effective and adequate access to and treatment in
justice, in any sphere: civil, administrative or criminal. selected by the Council of Europe in consultation with the CDCJ,
CDPC and CDDH on the basis of their personal expertise in
children’s rights, while respecting a specialisation balance
(between civil and administrative, criminal and human rights law),
Working method as well as a geographical and a gender balance. The group had
Mr Seamus Carroll (Ireland) – Chair of the CDCJ – as Chair,
5. With that transversal perspective in mind, the Council of Europe
Ms Ksenija Turković (Croatia) – appointed by the CDPC – as Vice-
adopted an innovative integrated approach bringing together
Chair, and Ms Ankie Vandekerckhove, children’s rights specialist
three of its major intergovernmental committees dealing with civil
from Belgium, as scientific expert.
and administrative law (the European Committee on Legal
Co-operation – CDCJ), criminal law (the European Committee on
Crime Problems – CDPC), general human rights (the Steering 8. 
The group included judges, attorneys, prosecutors, academics,
Committee for Human Rights – CDDH), and the European psychologists, police officers, social workers and representatives
Commission for the Efficiency of Justice (CEPEJ). The guidelines of the governments of the member states, and was therefore
were also drafted in close co-operation with the programme characterised by its multidisciplinary composition. A wide range
“Building a Europe for and with children”, which made child- of observers, including representatives of leading international
friendly justice one of the core pillars of the Council of Europe’s intergovernmental and non-governmental organisations, also
strategy on children’s rights for 2009-11. contributed to its work.

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Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice Explanatory memorandum

9. The draft guidelines and their explanatory memorandum were

12. This consultation was the first attempt of the Council of Europe
examined and approved by the CDCJ during its 85th plenary meeting to directly involve children and young people when drafting a
held from 11 to 14 October 2010, before their transmission to the legal instrument and will be extended to further similar activities
Committee of Ministers for adoption on 17 November 2010. Before with a view to ensuring the meaningful participation of children
that, the CDPC and the CDDH took note of the text and supported it at and young people in the normative work of the Organisation. It
their plenary sessions (7-10 June and 15-18 June 2010 respectively). was carried out with the generous financial support of the
Government of Finland.

13. 
During the drafting process, numerous changes were made to
Consultation of stakeholders ensure that the guidelines met the needs of children and responded
to what children recounted about the justice system. Overall, a very
10. The consultation of various stakeholders on the draft guidelines genuine effort was made to ensure that these views were taken into
was ensured throughout the drafting process through continuous account in the detail, scope and strength of the guidelines.
public consultation on the successive drafts of the text from
October 2009 to May 2010. A hearing with leading international 14. In particular, the views of children have been used to:
NGOs and other stakeholders specialised in children’s rights was • support the extent and manner in which the guidelines recognise
organised on 7 December 2009 in Strasbourg. The 4th draft of the right of children to be heard, to receive information about
the guidelines was specifically submitted to the member states their rights, to enjoy independent representation and to partici-
and focal points for comments, and to a number of internal and pate effectively in decisions made about them. The wording
external partners, between January and May 2010. The comments in all relevant sections was strengthened in these respects. For
were subsequently taken into consideration by the group when example, the guidelines now require judges to respect the
finalising the text, thus ensuring a transparent and inclusive right of all children to be heard in all matters affecting them
process of adoption. and require that the means used shall be adapted to the child’s
understanding and ability to communicate and take into account
the circumstances of the case;
Consultation of children and young people • ensure that adequate provision is made in the guidelines for
children to understand and receive feedback on the weight
11. In accordance with the terms of reference of this Group of Specialists, attached to their views;
the Council of Europe also organised a direct consultation of • strengthen the provision in the guidelines for support to children
children and young people on the topic of justice in 2010. Around before, during and after contact with the justice system. Particular
30 partners throughout Europe contributed to it, drafting, consideration was given to the role of parents and those trusted by
translating and disseminating a questionnaire in 11 languages children (for example, section on children and the police);
and organising focus groups. Exactly 3 721 replies from 25 countries
• support provision for an unequivocal right to access independent
were analysed by Dr Ursula Kilkelly, an Irish children’s rights
and effective complaints mechanisms for all parts of the justice
expert, and taken into account by the CJ-S-CH in the finalisation
system, support specialisation among all professionals and
of the guidelines. Key themes included family, (mis)trust of
demand appropriate training for all professionals who come
authority, need for respect and the importance for children and
into contact with children in the justice system. These issues
young people of being listened to.1
were considered central to addressing the lack of trust in
1. The report is available on the website: www.coe.int/childjustice. authority expressed by children during the consultation;

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Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice Explanatory memorandum

• strengthen provision with regard to confidentiality in professionals’ 17. In line with the terms of reference of the CJ-S-CH, the text of the
dealings with children; guidelines is structured around various principles applicable
before, during and after the proceedings.
• promote consultation and partnership with children, where
appropriate, with regard to the operation of children’s justice 18. The attention of those Council of Europe member states that are
systems, and the development and review of law, policy and considering drafting legislation concerning children in judicial
practice. and non-judicial proceedings is drawn to the guidelines’ relevant
principles, standards and recognised good practices.2

Structure and content

15. The guidelines are a non-binding instrument. While in these

guidelines the conditional “should” is frequently used where the
relevant principles are taken from a binding legal instrument,
whether a Council of Europe instrument or other international
instrument, the use of the conditional “should” must not be
understood as reducing the legal effect of the binding instrument
concerned.

16. The guidelines build on existing international, European and

national standards. The best interests of the child are their guiding
thread, as they take into account the basic principles set out in
the ECHR and the related case law of the Court and the United
Nations Convention on the Rights of the Child. The guidelines
promote and protect, among other things, the rights to information,
representation and participation of children in judicial and non-
judicial proceedings, and give a place and voice to the child in
justice at all stages of the procedures. As a practical tool, they
also present good practices and propose practical solutions to
remedy legal inconsistencies and lacunae. For instance, specific
techniques for listening to the child (including in a courtroom
environment) are addressed. The guidelines are not only a
declaration of principles, but aspire to be a practical guide to the
implementation and advancement of internationally agreed and
2. I nformation about the Council of Europe’s work on child-friendly justice and its progress is
binding standards. available on the website: www.coe.int/childjustice.

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Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice Explanatory memorandum

Introduction

19.  Over the last few decades, many public and private organisations,
ombudspersons, policy makers and others have been seeking to
ensure that children3 are aware of their rights and that these
rights are reinforced in their daily lives. While we recently
celebrated 60 years of the ECHR and 20 years of the United
Nations Convention on the Rights of the Child, reality at national,
regional and international levels demonstrates too often that
children’s rights are still violated.

20. Children may come into contact with judicial or non-judicial

proceedings in many ways: when their parents get divorced or
fight custody battles over them, when they commit offences,
witness crimes or are victims of crimes, request asylum, etc.
Children are bearers of rights and in this context it is necessary
that procedures are made more child friendly in order to
support them in the best possible way should they need to invoke
judicial or non-judicial proceedings to have their rights
protected.4

21. For children, there are many legal, social, cultural and economic
obstacles to their access to court, the lack of legal capacity probably
being the most important one. Very often, parents or guardians
legally represent them. But when the legal representative does
not want to act on their behalf, or is unable to do so, and when
competent public authorities do not instigate a procedure, children
often have no way to defend their rights or act against violations.
In those cases, and if a special representative has not been
appointed by the competent authority, they cannot enjoy the

3. P
 ersons up to 18 years of age.
4. U. Kilkelly, “Youth courts and children’s rights: the Irish experience”, in Youth Justice,
p. 41: “The Convention of the Rights of the Child, adopted in 1989, strengthened this
protection by providing for a range of due process standards that both recognised the
child’s right to a fair trial, but went further in recognising the need to adapt the trial
process to the needs and rights of children.”

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Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice Explanatory memorandum

basic right to bring a matter to court, even though the ECHR 25. In this context, the guidelines seek to facilitate the implementation
contains several fundamental principles to this effect (see of the guiding principles of the United Nations Convention on the
Article 6, which includes, inter alia, the right to a fair trial). And Rights of the Child. Equally, all rights stipulated by the ECHR
while the Convention includes human rights for “everyone”, and confirmed by the Court shall apply with equal force to children
bringing a case to court is particularly difficult for children. Despite as they do to adults.
the fact that the Court has some case law on children’s rights
issues, courts, both national and international, are rarely 26. A
 s the gap between these provisions and children’s actual
rights is striking, the explanatory memorandum makes frequent
accessible to children, and adults remain the ones who usually
references to good practices, factual and legal, found in member
initiate proceedings on their behalf.5 Therefore, children’s access
to justice needs to be addressed in the guidelines on child-friendly states and in the case law. They may serve as useful information
justice.6 and inspiration.

22. T he guidelines on child-friendly justice aim to deal with the

status and position of children and the way in which they are
treated in judicial and non-judicial proceedings. However, before
bringing cases to court, it may be in the child’s best interests to
turn to methods of alternative dispute resolution, such as mediation.
These guidelines cover proceedings both in and outside court.

23. They are meant to stimulate discussion on children’s rights in

practice and encourage member states to take further steps in
turning them into reality and filling in existing lacunae. They are
not intended to affect issues of substantive law or substantive rights
of children nor are they of a legally binding nature. Most of the
guidelines will only necessitate a change in approach in addressing
the views and needs of children.

24. They also aim to serve as a practical means for member states in
adapting their judicial and non-judicial systems to specific
needs of children in criminal, administrative and civil justice
procedures, irrespective of their status or capacity. They should
also be used in very specific areas of law, such as youth protection
legislation existing in several member states.

5. F. Tulkens, “The European Convention on Human Rights and children’s rights”, International
justice for children, Monograph No. 3, Council of Europe Publishing, 2009, p. 17-33.
6. T his is all the more necessary given that the terms of reference of the Group of Specialists
on child-friendly justice include looking for lacunae in these matters.

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Explanatory memorandum

Preamble
27. 
Major international organisations dealing with human rights,
such as the United Nations and the Council of Europe, have
already developed significant standards and guidelines referring
to children’s rights. They will be considered in the appropriate
place. The preamble mentions those standards which are
particularly relevant in this area without preventing member
states from introducing or applying higher standards or more
favourable measures. It also calls upon member states to speedily
ratify relevant Council of Europe conventions concerning children’s
rights. This is a practical measure as several of these instruments
have not been ratified by a high number of states.7

I. Scope and purpose

28. The scope and the purpose of the instrument are dealt with in
paragraphs 1 to 3. As already indicated, the guidelines apply to
criminal, civil or administrative law, and aim to ensure that all of the
rights of children in such proceedings are fully respected, while
striking the right balance with the rights of other parties involved.

II. Definitions
29. The definition of “child” is formulated in accordance with Article 1
of the United Nations Convention on the Rights of the Child, and
Article 1.1 of the European Convention on the Exercise of
Children’s Rights (ETS No. 160). The ECHR grants rights to
“everyone”, and does not exclude persons under the age of 18.
There may be cases where a person under the age of 18 is not
considered a child, for example in cases of emancipation, existing in
several member states.
7. PACE document (AS/Jur (2009)40) “The specificity and added value of the acquis of the
Council of Europe treaty law”.

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30. The definition of “parent” in paragraph b encompasses all persons 33. The reference made to the term “capable of forming his or her
with parental responsibilities, who may not always be the own views”10 should not be seen as a limitation, but rather a duty
biological parents, but also other persons holding parental on the authorities to fully assess the child’s capacity as far as
responsibilities, such as guardians or appointed legal representatives. possible. Instead of assuming too easily that the child is unable
to form an opinion, states should presume that a child has, in
31. W hile “child-friendly” justice is defined in paragraph c, the text fact, this capacity. It is not up to the child to prove this. In line
also insists that its scope is broader than the actual justice sys- with children’s rights legislation, the text of Part III A.2 underlines
tem and court proceedings. It is aimed at all professionals deal- the essential message that children are bearers of rights.
ing with children in and outside judicial proceedings. Sectors
such as police, social and mental health services are also respon- 34. 
States are discouraged from introducing standardised age
sible for making justice more child friendly. The guidelines strive limits.11 The United Nations Guidelines on Justice in Matters
to ensure that children’s rights are known and scrupulously involving Child Victims and Witnesses of Crime also state that
respected by all these professionals. “age should not be a barrier to a child’s right to participate fully
in the justice process.”12

35. In family cases, children should be included in the discussions

III. Fundamental principles prior to any decision which affects their present and/or future
well-being. All measures to ensure that children are included in
A. Participation8 the judicial proceedings should be the responsibility of the judge,
who should verify that children have been effectively included in
32. The principle of participation, that is, that children have the right the process and are absent only when children themselves
to speak their mind and give their views in all matters that affect have declined to participate or are of such maturity and
them is one of the guiding principles of the United Nations understanding that their involvement is not possible. Voluntary
Convention on the Rights of the Child.9 While this does not mean organisations and ombudspersons for children should also make
that their opinion will always be adhered to, the guidelines require all efforts to ensure that children are included in family law
that their opinions be taken into account seriously and proceedings and are not faced with a fait accompli.13
given due respect, according to their age, maturity and the
circumstances of the case, subject to national procedural law.

8. For more information, see General Comment No. 12 on the Right of the Child to be heard
(CRC/C/GC/12, 1 July 2009) and comments under IV, D, 3, the right to be heard. See also
Committee of Ministers’ Recommendation No. R (98) 8 on children’s participation in family
and social life, 18 September 1998, paragraph 4: “participation is a decisive factor for securing
social cohesion and for living in a democracy in accordance with the values of a multicultural 10. Ibid., Article 12.1.
society and the principles of tolerance”; paragraph 5: “participation of children is crucial in 11. General Comment No. 12 on the Right of the Child to be heard, paragraphs 20-21 (CRC/C/
influencing the conditions of their own lives, in that participation is not only involvement GC/12, 1 July 2009).
in institutions and decision-making but above all a general pattern of democracy relevant 12. United Nations Guidelines on Justice in Matters involving Child Victims and Witnesses of
to all areas of family and social life”. See furthermore European Court of Human Rights Crime (ECOSOC Res 2005/20, 22 July 2005), paragraph 18.
(Grand Chamber) judgment of 16 December 1999, T. v. UK, No. 24724/94, paragraph 83, 13. Some member states penalise parents who fail to honour custody and access commit-
and judgment of 16 December 1999, V. v. UK, No. 24888/94, paragraph 85: “[...] Article 6, ments notwithstanding the fact that it may be the child who refuses to comply. In other
read as a whole, guarantees the right of an accused to participate effectively in his states, parents may receive custodial sentences for failing to adhere to a court decision
criminal trial”. while such eventuality could be avoided by including the child in any decision made on
9. United Nations Convention on the Rights of the Child, Article 12. his or her behalf.

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B. Best interests of the child

In a case dealing with an accused minor with a low level of under-
standing, the Court found that “effective participation in this 36. The child’s best interests should be a primary consideration in all
context presupposes that the accused has a broad understanding cases involving children. The assessment of the situation needs
of the nature of the trial process and of what is at stake for him or to be done accurately. These guidelines promote the develop-
her, including the significance of any penalty which may be ment of multidisciplinary methods for assessing the best inter-
imposed. It means that he or she, if necessary with the assistance of, ests of the child acknowledging that this is a complex exercise.
for example, an interpreter, lawyer, social worker or friend, should This assessment becomes even more difficult when these inter-
be able to understand the general thrust of what is said in court. ests need to be balanced with the interests of other involved par-
The defendant should be able to follow what is said by the ties, such as other children, parents, victims, etc. This should be
prosecution witnesses and, if represented, to explain to his own done professionally, on a case-by-case basis.
lawyers his version of events, point out any statements with which
he disagrees and make them aware of any facts which should be 37. The best interests of the child must always be considered in com-
put forward in his defence.”14 Moreover, it is “essential that he be bination with other children’s rights, for example, the right to be
tried in a specialist tribunal which is able to give full consideration heard, the right to be protected from violence, the right not to be
to, and make proper allowance for, the handicaps under which he separated from parents, etc.18 A comprehensive approach must
labours, and adapt its procedure accordingly”.15 be the rule.

38. It is remarkable how little use is made of the “best interests” prin-
ciple in cases of juvenile justice, contrary to family law matters.
Similarly, in the case of Sahin v. Germany, the Court concluded There is a worrying trend in many Council of Europe member
in a custody case that “it would be going too far to say that domestic states towards treating young offenders like adults.19 It goes
courts are always required to hear a child in court on the issue of without saying that the rights of all children need to be respected,
access to a parent not having custody, but this issue depends on including the rights of those children who breach the law. A
the specific circumstances of each case, having due regard to the strictly punitive approach is not in accordance with the leading
age and maturity of the child concerned”.16 principles of juvenile justice as formulated in Article 40 of the
United Nations Convention on the Rights of the Child.20
Interventions of a more socio-educational nature are much more
Lastly, in another custody case, Hokkannen v. Finland, the in line with this instrument and have proven to be more effective
Court judged a 12-year-old girl “sufficiently mature for her views in practice as well.21
to be taken into account and that access therefore should not be
accorded against her wishes”.17

18. For practical suggestions see UNHCR Guidelines on Determining the Best Interests of the
14. European Court of Human Rights (Fourth Section), judgment of 15 June 2004, S.C. v. UK, Child, 2008 (www.unhcr.org/refworld/docid/148480c342.html).
No. 60958/00, paragraph 29. 19. See T. Hammarberg (www.coe.int/t/commissioner/Viewpoints)(2009).
15. European Court of Human Rights, ibid., paragraph 35. 20. General Comment No. 10 on Children’s Rights in Juvenile Justice (CRC/C/GC/10, 25 April
16. European Court of Human Rights (Grand Chamber), judgment of 8 July 2003, Sahin 2007), paragraph 71. Also see Committee of Ministers Recommendation No. R (87) 20 on
v. Germany, No. 30943/96, paragraph 73. social reactions to juvenile delinquency.
17. European Court of Human Rights (Chamber), judgment of 23 September 1994, Hokkanen 21. General Comment No. 10 on Children’s Rights in Juvenile Justice (CRC/C/GC/10, 25 April
v. Finland, No. 19823/92, paragraph 61. 2007).

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In several family law cases, the European Court of Human Rights In the adoption case of Pini and Others v. Romania, the Court
has stated that domestic courts should assess the difficult question ruled with regard to the child’s refusal to be adopted by a foreign
of the child’s best interests on the basis of a reasoned, independent family: “In such matters […] the child’s interests may, depending
and up-to-date psychological report, and that the child, if possible on their nature and seriousness, override those of the parent.”25
and according to his or her maturity and age, should be heard by
the psychologist and the court in access, residence and custody
matters.22 C. Dignity
39. Respecting dignity is a basic human rights requirement, underlying
In the case of Bronda v. Italy, the interests of the child were many existing legal instruments.26 Although various provisions of
deemed to override that of other parties involved: “[…] while a the United Nations Guidelines on Justice in Matters involving
fair balance has to be struck between S.’s interest in remaining Child Victims and Witnesses of Crime are relevant in this
with her foster parents and her natural family’s interest in having context, particular attention should be paid to its statement that
her to live with them, the Court attaches special weight to the “every child is a unique and valuable human being and as such
overriding interests of the child, who, now aged 14, has always his or her individual dignity, special needs, interests and privacy
firmly indicated that she does not wish to leave her foster home. should be respected and protected”.27
In the present case, S.’s interest outweighs that of her
40. T
 he text of C.2 repeats the provision of Article 3 of the ECHR.
grandparents.”23

A similar statement was made by the Court in the already D. Protection from discrimination
mentioned case of Sahin v. Germany: “Article 8 requires that
the domestic authorities should strike a fair balance between the 41. T he prohibition of discrimination is also a well-established
interests of the child and those of the parents and that, in the principle in international human rights law. Article 2 of the
balancing process, particular importance should be attached to United Nations Convention on the Rights of the Child is viewed
the best interests of the child, which, depending on their nature as one of its guiding principles. The text of D.1 mentions several
and seriousness, may override those of the parents. In particular, a well-known grounds for discrimination.
parent cannot be entitled under Article 8 to have such measures
taken as would harm the child’s health and development.”24

22. Cf. particularly European Court of Human Rights (Grand Chamber), judgment of 13 July
2000, Elsholz v. Germany, No. 25735/94, paragraph 53, and judgment of 8 July 2003,
Sommerfeld v. Germany, No. 31871/96, paragraphs 67-72. See also the partly dissenting 25. European Court of Human Rights (second section), judgment of 22 June 2004, Pini and
opinion of Judge Ress joined by Judges Pastor Ridurejo and Türmen in Sommerfeld v. Others v. Romania, Nos. 78028/01 and 78030/01, paragraph 155.
Germany (ibid.), paragraph 2. 26. See, for example, the preamble to the International Covenant on Civil and Political Rights,
23. European Court of Human Rights (Chamber), judgment of 9 June 1998, Bronda v. Italy, and the preamble to and Article 40, paragraph 1 of the United Nations Convention on the
No. 22430/93, paragraph 62. Rights of the Child.
24. European Court of Human Rights (Grand Chamber), judgment of 8 July 2003, Sahin v. 27. United Nations Guidelines on Justice in Matters involving Child Victims and Witnesses of
Germany, No. 30943/96, paragraph 66 Crime (ECOSOC Res 2005/20, 22 July 2005), III.8.a and I.6.

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42. 
On the specific question of “race”, the Council of Europe’s 46. The rule of law establishes, inter alia, the fundamental principle
European Commission against Racism and Intolerance (ECRI) that everyone is accountable to clearly established and pub-
in its General Policy Recommendation No. 7 on national legislation licised laws and has enforceable rights. This principle applies
to combat racism and discrimination, indicates: “Since all human irrespective of age so that member states are expected to respect
beings belong to the same species, ECRI rejects theories based on and support fundamental rights for all, including children.
the existence of different ‘races’. However, in this recommendation, The application of the rule of law with respect to children
ECRI uses this term in order to ensure that those persons who
necessitates, inter alia, enforcement of the right to the presump-
are generally and erroneously perceived as belonging to ‘another
tion of innocence and the right to a fair trial, including independ-
race’ are not excluded from the protection provided for by the
legislation.” ent legal assistance, effective access to a lawyer or other institu-
tion or entity which according to national law is responsible for
43. Some categories of particularly vulnerable children may be in defending children’s rights.
need of special protection in this respect. The text lists some of
these categories; however, the list does not purport to be exhaustive, 47. For children, the principles of nullum crimen sine lege and
as other grounds for discrimination cannot be excluded. nulla poena sine lege are just as valid as they are for adults and
are a cornerstone of a democracy’s criminal law system.31
44. Another important factor of discrimination in the area of children’s However, when dealing with anti-social − although not criminal −
rights is age and capacity. Very young children or children behaviour of children, there has been a trend in some member states
without full capacity to pursue their rights are also bearers of to apply far-reaching interventions, including deprivation of lib-
rights. For these children, alternative systems of representation erty. Under the pretext of the protection of society from anti-
need to be developed in order to avoid discrimination. social behaviour, children are drawn into intervention schemes
in a manner that would not be tolerated if applied to adults.
E. Rule of law28 Standard legal guarantees, such as the burden of proof attribut-
able to the state and the right to a fair trial, are not always present.
45. W ithout trying to define the concept of “the rule of law”, 29 sev- In many countries, the basic principles of law in criminal matters
eral of its elements are pointed out in E.1 and E.2. The whole text are not applied as fully for children as they are for adults. Children
has been influenced by the opinion of the Court that “the rule of are still punished for so-called “status” offences (acts that are not
law, one of the fundamental principles of a democratic society, is defined as crimes in law and would go unpunished when
inherent in all the articles of the Convention”.30 Therefore, its committed by an adult).32
impact should be felt in all proceedings involving children.
48. In order for the rule of law to be effectively and adequately
observed, particularly in relation to children, member states are
required under E.3 to introduce and/or maintain independent
and effective complaints mechanisms, bearing in mind their
28. See also the report by the Registry of the European Court of Human Rights, “Access of
children to justice – Specific focus on the access of children to the European Court of suitability to the age and understanding of the child.
Human Rights” and its case law related to children’s access to national jurisdictions in
the “Compilation of texts related to child-friendly justice”, Directorate General of Human
Rights and Legal Affairs, 2009, p. 11-19.
29. Brian Z. Tamanaha traced the idea back to Aristotle: “It is better for the rule of law to rule
than one of the citizens”, and continues: “so even the guardians of the laws are obeying 31. ECHR, Article 7; United Nations Convention on the Rights of the Child, Article 40,
the laws”. Cited from Tom Bingham, The Rule of Law, Allen Lane, Penguin Group, 2010, paragraph 2.a.
page 3. 32. See CRIN “Report on Status Offences” on http://www.crin.org/docs/Status_Offenses_
30. Ukraine-Tyumen v. Ukraine, no. 22603/02, paragraph 49, 22 November 2007. doc_2_final.pdf.

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IV. Child-friendly justice before, information, and what they give may be biased. In this context,
the role of children’s lawyers, ombudspersons and legal services
during and after judicial proceedings
for children is very important.

A. General elements of child-friendly justice 53. Guideline 2 reaffirms the right of the child to receive the
information and advice in understandable language, adapted to
49. These elements of child-friendly justice are relevant for all possible age, maturity and abilities.
actors in or outside court proceedings and apply irrespective of the
child’s status, and apply also to specific groups of particularly 54. 
Information on the procedural system includes the need for
vulnerable children. detailed information on how the procedure will take place, what
the standing and role of the child will be, how the questioning will be
1. Information and advice carried out, what the expected timing will be, the importance
and impact of any given testimony, the consequences of a
50. I n every individual case, from the very first contact with the certain act, etc. Children need to understand what is happening,
justice system and on each and every step of the way, all relevant how things could or would move forward, what options they have
and necessary information should be given to the child.33 This and what the consequences of these options are. They need to be
right applies equally to children as victims, alleged perpetrators informed of possible alternatives to proceedings. In some cases,
of offences or as any involved or affected party.34 Although it is mediation instead of court intervention may be more appropriate,
not always practical to provide information at the beginning of while in other circumstances recourse to a court may offer more
the child’s involvement with the competent authorities, this guarantees to a child. The different consequences of such a choice
need to be clearly explained to the child, so that a well-informed
should be done as soon as possible. However, there might be
decision can be made, although the child may not necessarily be
situations where information should not be provided to children
the decision maker in each case. This information could also be
(when contrary to their best interests). provided via a variety of child-friendly material containing relevant
51. Children need to be informed of their rights,35 but also of instruments legal information (Guideline 4).
they can use to actually exercise their rights or defend them
where necessary.36 This is the first condition for protecting these 55. Guideline 5 imposes the obligation to provide information on all
charges against the child, promptly and directly, both to the child
rights. In Part IV.A.1., Guideline 1 provides a detailed, but not
and to the parents, and the rights the child shall enjoy in such
exhaustive, list of information that children and their parents
cases. The child also needs to be given information about
should receive. prosecutorial decisions, relevant post-trial developments and on
52. Children may experience a lack of objective and complete how the outcome of the case will be determined. Information
information. Parents may not always share all pertinent should also be given regarding possible complaints mechanisms,
available systems of legal aid, representation or other possible
33. This is an important task of children’s ombudspersons and children’s rights organisations.
advice they may be entitled to. When a judgment is delivered, the
34. T his right is also covered in a variety of instruments such as the United Nations motivation ought to be provided in a way that the child can fully
Convention on the Rights of the Child, (Articles 13, paragraph 1; 37, paragraph d; understand. This becomes even more important for children with
40, paragraph 2.b(ii), 42), the United Nations Guidelines on Justice in Matters involving
Child Victims and Witnesses of Crime (ECOSOC Res. 2005/20, 22 July 2005, VII) and the special educational needs or low levels of literacy.37
European Convention on the Exercise of Children’s Rights (ETS No. 160, Article 3).
35. Article 42, United Nations Convention on the Rights of the Child.  37. T he information may have to be translated in a language the child understands (a foreign
36. T his should not be limited to legal information, but should also, for example, include language, Braille or other) as is the case for adults, and the formal legal terminology will
information on the existence of an ombudsperson or other services for children. have to be explained so that the child can fully understand its meaning.

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56. In the case of cross-border civil law and family disputes, depending 2. Protection of private and family life
on maturity and understanding, the child should be provided
with professional information relating to access to justice in the 57. A nonymity and protection of personal data in relation to the mass
various jurisdictions and the implications of the proceedings on media may be necessary for the child, as stipulated by several
his or her life. Children face particular challenges where there is instruments.40 In this respect, special mention should be made of
a history of family conflict and/or abuse. the Council of Europe Convention for the Protection of Individuals
with regard to Automatic Processing of Personal Data (ETS No.
108),41 which lists the set of commonly accepted standards con-
In the cases of both V. and T. against the United Kingdom, the cerning in particular the collection and processing of data and
Court noted that effective participation in the courtroom data quality. As in the case of the ECHR, children enjoy all rights
presupposes that the accused has a broad understanding of the under this convention even though it does not explicitly refer to
nature of the trial process, including the significance of any children’s rights. Additionally, its Article 6 provides for special
penalty which may be imposed. Therefore, juvenile defendants safeguards when it comes to sensitive data, such as personal
must be, in any case, represented by skilled lawyers experienced data related to criminal convictions. Other categories of data
in dealing with children.38 could be defined as sensitive by domestic law or treated as such
by public authorities allowing for the better protection of children’s
privacy. By way of example, one instrument42 lists the following cat-
In some Council of Europe member states, private or subsidised egories: disciplinary proceedings, recording cases of violence, medi-
services are available for children and young people where they can cal treatment in school, school orientation, special education for
get information on children’s rights in general or basic information disabled people and social aid to pupils from poor families.
on the legal issues of their own case or situation. In certain
member states, such as Belgium and the Netherlands, there are
“children’s rights shops”,39 which can refer them to a lawyer, pro-
vide them with assistance in exercising their rights (for example,
writing to a judge to be heard in a case), etc.

40. By way of example, Article 11.3 of the Convention on Action against Trafficking in Human
Beings (CETS No. 197) deals with privacy and protects personal data while urging states
to set up regulatory measures for the press. The United Nations Guidelines on Justice in
Matters involving Child Victims and Witnesses of Crime (ECOSOC Res 2005/20, 22 July
2005), paragraph X, 27, states: “Information related to a child’s involvement in the justice
process should be protected. This can be achieved through maintaining confidentiality
and restricting disclosure of information that may lead to identification of a child who is
a victim or a witness in the justice process.” This is also described in the United Nations
Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules, 1985,
Article 8): “The juvenile’s right to privacy shall be respected at all stages in order to avoid
harm being caused to her or him by undue publicity or by the process of labelling. In
principle, no information that may lead to the identification of a juvenile offender shall be
38. European Court of Human Rights (Grand Chamber), judgment of 16 December 1999, published.”
T. v. UK, No. 24724/94, paragraph 88, and judgment of 16 December 1999, V. v. UK, No. 41. T his instrument has a global vocation as it is open to the accession of non-member states
24888/94, paragraph 90. of the Council of Europe, if their legislation meets the convention’s requirements.
39. T he “Kinderrechtswinkel” in Ghent and Bruges and the “Service droit des jeunes” in most 42. Opinion 2/2009 of the EU Data Protection Working Party on the Protection of Children’s
major cities in the French-speaking community in Belgium. Personal Data (General guidelines and the special case of schools).

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58. In its General Comment No. 10 on Children’s Rights in Juvenile 62. The issue of privacy is particularly relevant in some measures
Justice,43 the United Nations Committee on the Rights of the intended to tackle anti-social behaviour of children. More specifi-
Child recommends, among others, proceedings in camera, cally, the implementation of so-called Anti-Social Behaviour
preserving confidentiality of records, delivering judgment which Orders (ASBOs) in the United Kingdom, including the policy of
will not reveal the child’s identity, etc. The Court includes the “naming and shaming”, shows that in such cases personal data is
possibility of having cases tried behind closed doors when the not always kept away from the general public. Guideline 10
interests of the child or his or her privacy require it,44 and Guideline 9 imposes a strict obligation in this respect on all professionals
reminds member states of this good practice. This principle working with children except where there is a risk of harm to the
should, however, be reconciled with the principle of free access child (see Article 12 of the Council of Europe Convention on the
to judicial proceedings, which exists in many member states. Protection of Children Against Sexual Exploitation and Sexual
Abuse, CETS No. 201).
59. Other possible ways to protect the privacy in the media are, inter
alia, granting anonymity or a pseudonym, using screens or dis-
guising voices, deletion of names and other elements that can In the case of B. and P. v. the United Kingdom, the Court
lead to the identification of a child from all documents, prohib- decided that proceedings concerning the residence of children
iting any form of recording (photo, audio, video), etc. after divorce or separation are prime examples of cases where
the exclusion of the press and public may be justified in order to
60. Member states have positive obligations in this respect. Guideline protect the privacy of the child and other parties and to avoid
7 reiterates that monitoring on either legally binding or profes- prejudicing the interests of justice.45
sional codes of conduct for the press is essential, given the fact
that any damage made after publication of names and/or photos
is often irreparable. Furthermore, in the case of V. v. the United Kingdom the Court
stated: “It follows that, in respect of a young child charged with a
61. A lthough the principle of keeping identifiable information inac-
grave offence attracting high levels of media and public interest,
cessible to the general public and the press remains the guiding
it would be necessary to conduct the hearing in such a way as to
one, there might be cases where exceptionally the child may benefit
reduce as far as possible his or her feelings of intimidation and
if the case is revealed or even publicised widely, for example,
inhibition.”46
where a child has been abducted. Equally, the issue at stake may
benefit from public exposure to stimulate advocacy or awareness
raising.

45. European Court of Human Rights B. and P. v. UK, judgment of 24 April 2001, Nos. 36337/97
43. G eneral Comment No. 10 on Children’s Rights in Juvenile Justice (CRC/C/GC/10, et 35974/97, paragraph 38.
25 April 2007). 46. European Court of Human Rights (Grand Chamber), judgment of 16 December 1999,
44. Rules of the European Court of Human Rights, Article 63. V. v. UK, No. 24888/94, paragraph 87.

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66. Guideline 13 recalls the fundamental principle of the special

In the above-mentioned cases of V. and T. against the United need for protection when the alleged perpetrator is a parent,
Kingdom, of criminal proceedings against two young boys who another member of the family or a primary caregiver.
murdered a toddler, the court stated, inter alia.: “[…] it is essential
that a child charged with an offence is dealt with in a manner 4. Training of professionals
which takes full account of his age, level of maturity and
intellectual and emotional capacities, and that steps are taken 67. Training in communication skills, in using child-friendly language
to promote his ability to understand and participate in the and developing knowledge on child psychology, is necessary for
proceedings.”47 Furthermore, “it follows that, in respect of a all professionals working with children (police, lawyers, judges,
young child charged with a grave offence attracting high levels of mediators, social workers and other experts), as stipulated by
media and public interest, it would be necessary to conduct the Guideline 14. However, few of them have knowledge of children’s
hearing in such a way as to reduce as far as possible his or her feel- rights and procedural matters in this context.
ings of intimidation and inhibition”.48
68. Children’s rights could and should be part of the curriculum, in
schools and in specific fields of higher education (law, psychology,
3. Safety (special preventive measures) social work, police training, etc.). This should cover the specifics
of children’s rights and legislation pertaining to children’s issues,
63. Concerning children as victims, these guidelines are inspired by
the principles of the United Nations Guidelines on Justice in such as family law, juvenile justice, asylum and immigration law,
Matters involving Child Victims and Witnesses of Crime,49 and etc. Member states are encouraged to set up specific training
the Convention on the Protection of Children against Sexual courses.
Exploitation and Sexual Abuse, which calls for providing for the
69. 
The aforementioned conference in Toledo (see paragraph 6
safety of children, their families and witnesses on their behalf
above) concluded: “All professionals – in particular judges,
from intimidation, retaliation and repeated victimisation.50
psychologists and lawyers – dealing with children in justice
64. Guideline 11 recalls that children, particularly vulnerable ones, should receive appropriate information, awareness raising and
should be protected from harm, whatever form it takes. It is training on appropriate interviewing techniques.”51
inspired by many existing provisions to this effect.
65. Vetting of personnel in children’s services for child protection, as For several years now, the Flemish Bar Association and its Youth
recommended by Guideline 12 has been introduced in certain Lawyer Commission has been offering its members a two-year course
member states, involving a check of criminal records and on children’s rights. The legal information is complemented with
preliminary measures to be taken when a person has allegedly basic training in child psychology and development and practical
committed criminal offences against children. This exercise training such as communicating with children. Attendance of all
should obviously respect the presumption of innocence and the modules is obligatory in order to obtain a certificate as a “youth
independence of the judicial system. lawyer”. In 2010, some 400 youth lawyers were trained.52
47. European Court of Human Rights (Grand Chamber), judgments of 16 December 1999,
T. v. UK, No. 24724/94, paragraph 84, and V. v. UK, No. 24888/94, paragraph 86.
48. European Court of Human Rights (Grand Chamber), judgments of 16 December 1999,
T. v. UK, No. 24724/94, paragraph 85, and V. v. UK, No. 24888/94, paragraph 87.
49. United Nations Guidelines on Justice in Matters involving Child Victims and Witnesses of
Crime (ECOSOC Res 2005/20, 22 July 2005). 51. www.coe.int/t/dghl/standardsetting/children/Toledoconference_en.asp
50. Article 31. 1. f. 52. M
 ore information (in Flemish) at www.jeugdadvocaat.be.

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Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice Explanatory memorandum

5. Multidisciplinary approach Punishment.53 As indicated in the former instrument, special

efforts must be undertaken to avoid pre-trial detention.
70. The text of the guidelines as a whole, and in particular Guidelines International children’s rights bodies are very critical about its
16 to 18, encourage member states to strengthen the interdiscipli- use and are seeking to reduce it.54 However, pre-trial detention
nary approach when working with children. might in certain cases still be necessary, for example, to avoid
71. In cases involving children, judges and other legal professionals the risk of tampering with evidence, influencing witnesses, or
should benefit from support and advice from other professionals when there is a risk of collusion or flight, etc.
of different disciplines when taking decisions which will impact 74. Since there are already numerous standards on the rights of
directly or indirectly on the present or future well-being of the juveniles deprived of their liberty,55 the guidelines do not need to
child, for example, assessment of the best interests of the child, repeat them. The main principle is that no other children’s right
possible harmful effects of the procedure on the child, etc. shall be restricted except the right to liberty, as a consequence of
72. A multidisciplinary approach to children in conflict with the law the deprivation of liberty. As Guidelines 19 and 20 clearly stipulate,
is particularly necessary. The existing and growing understanding remedies that involve detention, in whatever form, need to be
of children’s psychology, needs, behaviour and development is avoided as much as possible and should only be a measure of last
not always sufficiently shared with professionals in the law resort, used for the shortest time possible and restricted to serious
enforcement fields. cases.56 This is a vital legal obligation. In addition, it is common
knowledge that detention does not diminish the risk of recidivism.

In Iceland, Norway and Sweden, cases of abuse and violence can 75. As already indicated, the sections on the deprivation of liberty
be dealt with in so-called “children’s houses”. Professionals from and the police do not purport to compile an exhaustive list of
social services, forensic medical experts, paediatricians, the rights and safeguards, but represent an absolute minimum of
police and prosecutors’ offices work together, primarily in the rights children should enjoy. Guideline 21 should be read in this
initial stages of a police or social services investigation. They sense.
organise and allocate the different tasks to be carried out.
Interviews with the children concerned take place in these 76. The issue of whether or not to detain children with adults is not
houses, with the possibility of a third party listening in by a new one. In some cases, such as those involving infants, it can
video link in an adjacent room. There are also rooms for medical be in their best interests not to be separated from a detained par-
examination and counselling. ent, or in the case of children of immigration detainees who
should not be separated from their family. Several Council of

6. Deprivation of liberty
73. Particular attention should be paid to the way detained children
are treated given their inherent vulnerability. Practical measures for
53. CPT standards (CPT/inf/E (2002) 1, Rev 2009 on www.cpt.coe.int/en/docsstandards.htm).
detention of children are suggested in many Council of Europe 54. See, for example, the Concluding Observations for Belgium: “The Committee recommends
instruments, for example, Recommendation CM/Rec(2008)11 on that the state party: […] (c) […] ensure, in accordance with Article 37 of the Convention,
that the deprivation of liberty is only used as a measure of last resort, for the shortest
the European Rules for juvenile offenders subject to sanctions or possible time, that guarantees of due process are fully respected and that persons under
18 are not detained with adults.” (CRC/C/15/Add. 178, paragraph 32, c, 13 June 2002),
measures, or the standards of the European Committee for the 55. United
 Nations Convention on the Rights of the Child, Articles 37 and 40.
Prevention of Torture and Inhuman or Degrading Treatment or 56. R ecommendation of the Committee of Ministers, CM/Rec(2008) 11, paragraph 59.1.

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Europe member states believe that in large, sparsely populated

In the case of Guvec v. Turkey, the Court reiterated its comments
areas, it may exceptionally be in the best interests of the child to
on excessive periods of detention. It expressly stated: “In at least
be detained in adult facilities (facilitating visits from parents three judgments concerning Turkey, the Court has expressed its
who may reside hundreds of kilometres away, for example). misgivings about the practice of detaining children in pre-trial
However, such cases require particular vigilance on the part of detention (see Selçuk v. Turkey, No. 21768/02, paragraph 35, 10
detaining authorities, in order to prevent the abuse of children by January 2006; Koş ti and Others v. Turkey, No. 74321/01,
adults. paragraph 30, 3 May 2007; the aforementioned case of Nart v.
Turkey, 20817/04, paragraph 34) and found violations of Article 5,
77. However, the United Nations Committee on the Rights of the paragraph 3 of the Convention for considerably shorter periods
Child has been very clear on this issue, based on Article 37.c, of than that spent by the applicant in the present case. For example,
the United Nations Convention on the Rights of the Child. The in Selçuk the applicant had spent some four months in pre-trial
above-mentioned Recommendation CM/Rec(2008)11 also states detention when he was 16 years old and in Nart the applicant had
that juveniles shall not be detained in institutions for adults, but spent 48 days in detention when he was 17 years old. In the
in institutions specially designed for them. present case, the applicant was detained from the age of 15 and
was kept in pre-trial detention for a period in excess of four and
78. Several references recall that the guidelines do apply to children a half years. In the light of the foregoing, the Court considers that
seeking asylum and that specific attention should be given to this the length of the applicant’s detention on remand was excessive
particularly vulnerable group; unaccompanied minors, whether and in violation of Article 5, paragraph 3 of the Convention.”57
or not they are asylum seekers, should not be deprived of their
liberty solely as a result of the absence of residence status
(Guideline 22). B. Child-friendly justice before judicial proceedings
79. A complex but important issue is that of the minimum age of
criminal responsibility. This age ranges among the member
states of the Council of Europe from as young as 8 to the age of
majority. The text of Guideline 23 was inspired by Recommendation
CM/Rec(2008)11 of the Committee of Ministers to member states
on the European Rules for juvenile offenders subject to sanctions
or measures. The United Nations Convention of the Rights of the
Child does not set any age, but General Comment No. 10 on
Children’s Rights in Juvenile Justice advises member states not
to set this minimum age too low. The United Nations Standard
Minimum Rules for the Administration of Juvenile Justice con-
veys a similar message. The European Network of Children’s
Ombudspersons (ENOC) advocates that the age be raised to 18 and
recommends the development of innovative systems to respond
to all offenders under the age of majority that genuinely focus on
their (re)education, reintegration and rehabilitation.

57. European Court of Human Rights (Second Section), judgment of 20 January 2009, Guvec
v. Turkey, No. 70337/01, paragraphs 109-110.

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80. In general, a preventive and reintegrating approach should be 84. In General Comment No. 12, the United Nations Committee on
promoted and implemented in matters of juvenile justice. The the Rights of the Child recommended that:58 “In case of diversion,
criminal law system should not automatically be set in motion by including mediation, a child must have the opportunity to give
minor offences committed by children, when more constructive free and voluntary consent and must be given the opportunity to
and educational measures can be more successful. Moreover, obtain legal and other advice and assistance in determining the
member states should react to offences in proportion not only to appropriateness and desirability of the diversion proposed.”
the circumstances and gravity of an offence, but also to age,
Guideline 26, however, requires that children should be guaranteed
lesser culpability and needs of the child, and the needs of society.
equivalent levels of safeguards in both judicial and out-of-court
81. Guidelines 24 to 26 recall that in several member states attention proceedings.
has been focused on the settlement of conflicts outside courts,
85. 
To sum up, the text of the guidelines encourages access to
inter alia by family mediation, diversion and restorative justice.
This is a positive development and member states are encouraged to national courts for children as bearers of rights, in accordance
ensure that children can benefit from these procedures, pro- with the jurisprudence of the Court, to which they have access if
viding that they are not used as an obstacle to the child’s access they so wish. However, such access is balanced and reconciled
to justice. with alternatives to judicial proceedings.

82. Such practices already exist in many Council of Europe member

states and may refer to practices before, during and after judicial In the canton of Fribourg, Switzerland, a mediation scheme has
proceedings. They become particularly relevant in the area of been worked out for children in conflict with the law. Searching
juvenile justice. These guidelines do not give preference to any for a balance between restoration and retribution, mediation
non-judicial alternatives, and should also be implemented within considers the rights and interests of the victim and of the offender.
them, in particular in family conflicts, which involve not only In cases where certain criteria are met, the judge can refer the
strictly legal issues. The law has its limitations in this area and case to the mediator. While the mediator is in charge of the
may have harmful effects in the long run. Mediated arrangements mediation as such, it is the judge who remains in charge of the
are reported to be more respected because the concerned par- criminal case. Whether or not an agreement is found between the
ties are actively involved. Children may be able to play a role in parties, the outcome of the mediation would be communicated to
them as well. Mandatory referral to mediation services, prior to the judge, who can either pronounce the agreement (in writing)
court procedures, could also be considered: this is not to force or continue the proceedings, in case no agreement was reached.
people to mediate (which would be contradictory to the whole
idea of mediation), but to give everyone the opportunity to be
aware of such a possibility.
In Norway, couples filing for a divorce with children under 16 must
83. While there is a certain belief that children should be kept out of attempt mediation before being able to start a court procedure.
courts as much as possible, court procedure is not necessarily The purpose is to help parents to reach an amicable agreement
worse than an outside court alternative, as long as it is in line regarding where children should live, concerning the exercise of
with the principles of child-friendly justice. Just like court parental responsibilities and visiting rights, to ensure that the
settings, alternatives can also involve risks with regard to children’s best interests are taken into account.
children’s rights, such as the risk of diminished respect for
fundamental principles like the presumption of innocence, the
right to legal counsel, etc. Any choice made should therefore look 58. General Comment No. 12 on the right of the child to be heard (CRC/C/GC/12, 1 July 2009),
into the distinct quality of a given system. paragraph 59.

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C. Children and the police

In Okkali v. Turkey, the Court reviewed the case of a 12-year-old
86. T he police should also apply the guidelines on child-friendly boy under police arrest, who claimed he had suffered ill-treatment.
justice. This applies to all situations where children might come The Court considered that he should have enjoyed greater
in contact with the police, and it is, as stipulated by Guideline 27, of protection as a minor and that the authorities had failed to take
particular importance when dealing with vulnerable children. account of his particular vulnerability. The Court added that in
cases like this, a lawyer should be assigned to assist the child and
87. It is obvious that a child-friendly attitude should also be present the parents (or legal representatives) need to be informed of the
in potentially risky situations, such as the arrest or questioning detention.61
of children, covered by Guidelines 28 and 29. Save in exceptional
cases, parents need to be promptly notified of the arrest of their
child, and the child should always have access to a lawyer or any In the case of Salduz v. Turkey, the Court considered Article 6,
other entity which according to national law is responsible for paragraph 1, of the ECHR to have been violated since a 17-year-
defending children’s rights, and the right to notify parents or a old suspect did not have access to a lawyer during five days in
person whom they trust. Contact with youth protection services police custody. The Court found that, “in order for the right to a
should be granted as from the moment of arrest.59 Only if the par- fair trial under Article 6, paragraph 1, to remain sufficiently ’practical
ents are not available should another person whom the child trusts and effective’, access to a lawyer should be provided, as a rule,
be contacted (for example, his or her grandparents). from the first interrogation of a suspect by the police […]”.62 The
88. The European Committee for the Prevention of Torture and Court also noted that one of the specific elements of this case was
Inhuman or Degrading Treatment or Punishment (CPT) has the applicant’s age. Having regard to a significant number of
developed a series of standards which apply to detention of relevant international legal instruments concerning legal assistance
children by the police. In addition, in its comments on the to minors in police custody, the Court stressed the fundamental
European draft rules for juvenile offenders,60 it has pointed out importance of providing access to a lawyer where the person in
that these rules should expressly stipulate that children detained police custody was a minor.63
by the police should not be required to make any statement or
sign any document related to the offence of which they are
suspected without a lawyer or trusted person being present to D. Child-friendly justice
assist them. These standards are supported by Guideline 30. during judicial proceedings
States might usefully consider introducing special police units
89. These elements of child-friendly justice should be applied in all
that have been trained for these tasks.
proceedings: civil, criminal and administrative.

59. A recent judgment by a Belgian juvenile court (Antwerp, 15 February 2010) acquitted a
juvenile offender because the judge found that his defence rights had been violated since 61. European Court of Human Rights (Second Section), judgment of 17 October 2006,
he had not received legal counsel at the police hearing, where he claimed to have been Okkali v. Turkey, No. 52067/99, paragraph 69 et seq.
forced to admit to the said offences. The judge concluded that Article 6 of the ECHR had 62. European Court of Human Rights (Grand Chamber), judgment of 27 November 2008,
been violated. Salduz v. Turkey, No. 36391/02, paragraph 55.
60. C PT, 18th General Report (2007-2008), paragraph 24. 63. I bid., paragraphs 56-62.

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1. Access to court and to the judicial process 94. Attention must be given to the strong link between issues of
access to justice, proper legal counselling68 and the right to voice an
90. A lthough children are legally considered to be bearers of rights, opinion in court procedures. It is not the aim of these guidelines
as stipulated by Guideline 34, they are often not capable of to encourage children to address the courts for no apparent
exercising them effectively. In 1990, the Parliamentary Assembly reason or legal ground. It goes without saying that children, like
of the Council of Europe underlined in its Recommendation 1121 adults, should have a solid legal basis to bring a case to court.
(1990) on the rights of children that “children have rights they Where the child’s rights have been violated or need defending
may independently exercise themselves even against opposing and whenever the legal representative does not do so on behalf of
adults.”64 The United Nations Convention on the Rights of the the child, there should be the possibility to have the case reviewed
Child contains a certain right of initiative for court action by the by a judicial authority. Access to court for children may also be
child in Article 37.d, where a child can challenge the legality of necessary in cases where there can be a conflict of interests
between the child and the legal representative.
his or her deprivation of liberty. At present, there is strong
support for the establishment of a complaints procedure under 95. Access to court can be based on a set age limit or on the notion
this convention.65 This will hopefully give children the same kind of a certain discernment, maturity or level of understanding.
of remedies to fight violations of their rights as granted to adults Both systems have advantages and disadvantages. A clear age
under several other universal human rights conventions. limit has the advantage of objectivity for all children and guar-
antees legal certainty. However, granting children access based
91. In the same context, the ECHR gives “everyone” whose human on their own individual discernment gives the opportunity for adap-
rights are violated, the right to “an effective remedy before a tation to every single child, according to their levels of maturity.
national authority”.66 This wording clearly includes children. The This system can pose risks due to the wide margin of apprecia-
result is that children can bring their cases to the Court, although tion left to the judge in question. A third possibility is a combina-
they are often not entitled to bring legal proceedings under their tion of both: a set legal age limit with a possibility for a child
domestic law.67 under this age to challenge this.69 This may, however, raise the
additional problem that the burden of proof of capacity or dis-
92. G
 iven the fact that most legislation on legal incapacity of cernment lies with the child.
children is drafted with a view to protecting the children, it is
96. No age limit is set in these guidelines, as it tends to be too rigid
nevertheless essential that this lack of capacity is not used
and arbitrary and can have truly unjust consequences. It also
against them when their rights are being violated or when no one
cannot fully take into account the diversity in capacities and lev-
else defends these rights. els of understanding between children. These can vary greatly
93. Guideline 34 also recommends that member states’ legislation depending on the individual child’s development capacities, life
experiences, cognitive and other skills. A 15-year-old can be less
facilitate, where appropriate, access to court for children with
mature than a 12 -year-old, while very young children may be
sufficient understanding of their rights. It also recommends the
intelligent enough to assess and understand their own specific
use of remedies to protect these rights, upon receiving adequate situation. The capability, maturity and level of understanding are
legal advice. more representative of the child’s real capacities than his or her
age.
64. Recommendation 1121 (1990) on the rights of children, paragraph 6.
65. T he campaign for a complaints mechanisms for the United Nations Convention on
the Rights of the Child. 68. T his also serves to convince the child not to start a procedure where there is in fact
66. A rticle 13. no legal ground or chance of succeeding.
67. See report by the Court’s Registry, op. cit., p. 5: “Children may thus apply to the Court 69. B y way of example, Belgian legislation sometimes uses an age limit, and sometimes
even when they are not entitled, in domestic law, to bring legal proceedings.” the level of discernment.

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97. W
 hile recognising that all children, regardless of age or capacities,
are bearers of rights, age is in fact a major issue in practice, as The Court, in the case of Stubbings and Others v. the United
very young children, or children with certain disabilities, will Kingdom,72 considered that “there has been a developing awareness
not be able to effectively protect their rights on their own. in recent years of the range of problems caused by child abuse
Member states should therefore set up systems in which and its psychological effects on victims, and it is possible that the
designated adults are able to act on behalf of the child: they rules on limitation of actions applying in member states of the
can be either parents, lawyers, or other institutions or entities Council of Europe may have to be amended to make special
which, according to national law, would be responsible for provision for this group of claimants in the near future.”73
defending children’s rights. These persons or institutions should
not only become involved or recognised when procedures are
already pending, but they should also have the mandate to 2. Legal counsel and representation74
actively initiate cases whenever a child’s right has been violated
or is in danger of being violated. 101. If children are to have access to justice which is genuinely child
friendly, member states should facilitate access to a lawyer or
98. Guideline 35 recommends that member states remove all obstacles other institution or entity which according to national law is
for children’s access to court. It gives examples such as the cost responsible for defending children’s rights, and be represented
of proceedings and the lack of legal counsel, but recommends that in their own name where there is, or could be, a conflict of inter-
other obstacles also be removed. Such obstacles may be of a dif- est between the child and the parents or other involved parties.
ferent nature. In case of a possible conflict of interests between
This is the main message of the Guideline 37. The European
children and their parents, the requirement of parental consent
Convention on the Exercise of Children’s Rights (ETS No. 160)75
should be avoided. A system needs to be developed whereby the
undue refusal of a parent cannot keep a child from having states: “Parties shall consider granting children additional pro-
recourse to justice. Other obstacles to access to justice may be cedural rights in relation to proceedings before a judicial author-
of a financial or psychological nature. Procedural requirements ity affecting them, in particular […] a separate representative
should be limited as far as possible.70 […] a lawyer”.76

99. In some cases, a child cannot challenge certain acts or decisions 102. Guideline 38 recommends providing children with access to
during his or her childhood due to trauma in cases of, for example, free legal aid. This should not necessarily require a completely
sexual abuse or highly conflictual family matters. separate system of legal aid. It might be provided in the same
way as legal aid for adults, or under more lenient conditions, and
100. In such cases, Guideline 36 recommends that access to court
should be granted for a period of time after the child has reached be dependent on the financial means of the holder of the parental
the age of majority. It therefore encourages member states to responsibility or the child him or herself. In any case, the legal
review their statutes of limitations. The Council of Europe aid system has to be effective in practice.
Convention on the Protection of Children against Sexual
Exploitation and Sexual Abuse (CETS No. 201) could usefully
serve as an inspiration in this regard.71
72. European Court of Human Rights (Chamber), judgment of 22 October 1996, Stubbings
and Others v. UK, Nos. 22083/93; 22095/93, paragraph 56. http://www.coe.int/t/dghl/.
70. A too restrictive or purely technical approach on representation should be avoided. See 73. Paragraph 56.
I. Berro-Lefèvre, “Improving children’s access to the European Court of Human Rights”, 74. See ChildONEurope, Survey on the national systems of children’s legal representation,
International justice for children, Monograph No. 3, Strasbourg, Council of Europe March 2008 (www.childoneurope.org). Several models are illustrated in this survey.
Publishing, 2008, p. 69-78. 75. ETS No. 160.
71. A rticle 33. 76. A rticle 5.b.

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103. Guideline 39 describes the professional requirements for the 3. Right to be heard and to express views
lawyers representing children. It is also important that the legal
fees of the child’s lawyer are not charged to his or her parents, 106. General Comment No. 12 of the United Nations Committee on
either directly or indirectly. If a lawyer is paid by the parents, in the Rights of the Child interprets the right of the child to be
particular in cases with conflicting interests, there is no heard, which is one of the four guiding principles of the United
guarantee that he or she will be able to independently defend Nations Convention on the Rights of the Child, using the words
the child’s views. “shall assure” which is a legal term of special strength which
leaves no leeway for states parties’ discretion.77 This comment
elaborates on the fact that age alone cannot determine the
104. A system of specialised youth lawyers is recommended, while significance of a child’s views.78 In its General Comment No. 5,
respecting the child’s free choice of a lawyer. It is important to the committee rightly notes that “appearing to listen to children is
clarify the exact role of the child’s lawyer. The lawyer does not relatively unchallenging; giving due weight to their views
have to bring forward what he or she considers to be in the best requires real change”.79
interests of the child (as does a guardian or a public defender),
but should determine and defend the child’s views and 107. 
A rticle 3 of the European Convention on the Exercise of
opinions, as in the case of an adult client. The lawyer should Children’s Rights (ETS No. 160) combines the right to be
seek the child’s informed consent on the best strategy to use. heard with the right to be informed: in judicial proceedings,
If the lawyer disagrees with the child’s opinion, he or she children should receive all relevant information, be consulted
should try to convince the child, as he or she would with any and express their views and be informed of the possible
other client. consequences of compliance with these views and the possible
consequences of any decision.
105. T he lawyer’s role is different from the guardian ad litem, 108. In these guidelines, reference is made to concepts such as “age
introduced by Guideline 42, as the latter is appointed by the and maturity” and “sufficient understanding”, which implies
court, not by “a client” as such, and should help the court in a certain level of comprehension, but does not go as far as to
defining what is in the best interests of the child. However, demand from the child a full comprehensive knowledge of all
combining the functions of a lawyer and a guardian ad litem in aspects of the matter at hand.80 Children have the right to give
one person should be avoided, because of the potential con- their views freely, without any pressure and without
flict of interests that may arise. The competent authority should manipulation.81
in certain cases appoint either a guardian ad litem or another
independent representative to represent the views of the child.
This could be done on the request of the child or another
relevant party.

77. General Comment No. 12 on the right of the child to be heard (CRC/C/GC/12, 1 July 2009),
paragraph 19.
In Georgia, the right to legal aid for persons under the age of 18 78. I bid., paragraph 28-31.
79. General Comment No. 5 on General measures of implementation of the United Nations
in criminal cases is granted ex officio, since they are considered Convention on the Rights of the Child (CRC/GC/2003/5), Article 12.
to be “socially vulnerable”. No other condition is required for 80. For more information, see CRIN Review: “Measuring maturity. Understanding children’s
‘evolving capacities’”, 2009.
those children to benefit from this service. 81. General Comment No. 12 on the right of the child to be heard (CRC/C/GC/12, 1 July 2009),
paragraph 22.

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109. The United Nations Guidelines on Justice in Matters involving 113. It is important that the child can speak freely and that there is
Child Victims and Witnesses of Crime use the wording “child no disruption. This may in practice mean that no other people
sensitive” as “an approach that balances the child’s right to should be allowed in the room (for example, the parents or the
protection and that takes into account the child’s individual alleged perpetrator), and that the atmosphere is not disturbed
needs and views”.82 by unwarranted interruption, unruly behaviour or transit of
people in and out of the room.
110. 
Laws should be clearly formulated in order to ensure legal
equality for all children. Irrespective of age, in particular when 114. Judges are often untrained in communicating with children
a child takes the initiative to be heard, a sufficient level of under- and specialised professionals are seldom called upon to
standing should be presumed. Age, however, still plays a major support them in this task. As already indicated (paragraph 96
role in “granting” children their basic right to be heard in matters above), even young children can state their views clearly, if they
that affect them (Guideline 45). However, it must be pointed out are assisted and supported correctly. Judges and other profes-
that, in some circumstances, it is the child’s duty to be heard sionals should actually look for the child’s own views, opinions
(that is, to give evidence). and perspective on a case.

111. Children need to know precisely what will happen and what the 115. Depending on the wishes and the interests of the child, serious
status of their given opinion or statement will be.83 The judge consideration should be given to who will listen to the child,
should not refuse to hear the child without good reasons unless presumably either the judge or an appointed expert.84 Some
this is in the best interests of the child (Guideline 47). They children may prefer to be heard by a “specialist” who would
should be clearly informed that if a judge does hear them, this then convey his or her point of view to the judge. Others,
does not mean they will “win” the case. In order to gain or obtain however, make it clear that they prefer to talk to the judge
the trust and respect for the given judgment, particular effort himself or herself, since he or she is the one who will make the
should be made by the child’s lawyer to explain why the child’s decision.
opinion has not been followed or why the given decision has
116. While it is true that there is a risk of children being manipulated
been made, as is done for adults (Guideline 48).
when they are heard and express their views (for example, by
112. Furthermore, children have the right to express their views and one parent against the other), all efforts should be made not to
opinion on any issue or case that involves or affects them. They let this risk undermine this fundamental right.
should be able to do so regardless of their age, in a safe environment,
117. The United Nations Committee on the Rights of the Child warns
respectful of their person. They have to feel at ease when they
against a tokenistic approach and unethical practices,85 and
talk to a judge or other officials. This may require the judge to
lists the basic requirements for effective and meaningful
omit certain formalities, such as wearing a wig and gown or
hearing the child in the courtroom itself; by way of example, it
can be helpful to hear a child in the judge’s chambers. 84. T he United Nations Committee on the Rights of the Child recommends that children are
heard directly. General Comment No. 12 on the Right of the Child to be heard (CRC/C/
GC/12, 1 July 2009), paragraph 35.
85. General Comment No. 12 on the Right of the Child to be heard (CRC/C/GC/12, 1 July 2009),
paragraph 132: “The Committee urges States parties to avoid tokenistic approaches,
which limit children’s expression of views, or which allow children to be heard, but fail
to give their views due weight. It emphasizes that adult manipulation of children, placing
82. United Nations Guidelines on Justice in Matters involving Child Victims and Witnesses of children in situations where they are told what they can say, or exposing children to risk
Crime (ECOSOC Res 2005/20, 22 July 2005). of harm through participation are not ethical practices and cannot be understood as
83. European Convention on the Exercise of Children’s Rights, Article 3. c. implementing Article 12.”

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Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice Explanatory memorandum

implementation of the right to be heard.86 Processes for hearing 4. Avoiding undue delay
children should be transparent and informative, voluntary,
respectful, relevant, child friendly, inclusive, carried out by 118. Cases in which children are involved need to be dealt with
trained staff, safe and sensitive to risk and, finally, accountable. expeditiously and a system of prioritising them could be
considered.90 The urgency principle is set out in Guideline 50. It
should be borne in mind that children have a different per-
In a case of inter-country adoption with Italian adopters of ception of time from adults and that the time element is very
Romanian children (case of Pini and Others v. Romania), the important for them: for example, one year of proceedings in a
Court was very clear on the right of the children to be heard and custody case may seem much longer to a 10-year-old than to an
that their views be taken seriously: “It must be pointed out that in adult. The rules of court should allow for such a system of
the instant case the children rejected the idea of joining their prioritising in serious and urgent cases, or when possibly
adoptive parents in Italy once they had reached an age at irreversible consequences could arise if no immediate action is
which it could be reasonably considered that their personality taken (Guideline 51 covering family law cases).
was sufficiently formed and they had attained the necessary
maturity to express their opinion as to the surroundings in which 119. 
Other examples of this principle can be found in relevant
they wished to be brought up.” 87 “The children’s interests dic- Council of Europe instruments. One of them demands that
tated that their opinions on the subject should have been taken states ensure that the investigations and criminal proceedings
into account once they had attained the necessary maturity to are treated as a priority and carried out without any unjustified
express them. The children’s constant refusal, after they had delays.91 This is also very important to allow victims to be able
reached the age of 10, to travel to Italy and join their adoptive to start their recovery. Another instrument specifically
parents carries a certain weight in this regard.”88 recommends “ensuring that minors are treated more rapidly,
avoiding undue delay, so as to ensure effective educational
action.”92
In the case of Hokkanen v. Finland, a father claimed custody of
120. R
 especting the best interests of the child might require
his daughter who had been living with her grandparents for years.
flexibility on the part of judicial authorities, while enforcing
The child did not want to live with her father and the Court
certain decisions, in accordance with the national law, as
agreed that “the child had become sufficiently mature for her
indicated by Guideline 53.
views to be taken into account and that access should therefore
not be accorded against her wishes”.89

86. General Comment No. 12 on the Right of the Child to be heard (CRC/C/GC/12, 1 July 2009),
paragraph 133-134. 90. Cf. Art 41 of the Rules of the European Court of Human Rights. This should be used more
87. European Court of Human Rights (Second Section), judgment of 22 June 2004, Pini and frequently according to I. Berro-Lefevre, op.cit., p. 76. 
Others v. Romania, Nos. 78028/01 and 78030/01, paragraph 157. 91. Council of Europe Convention on the Protection of Children against Sexual Exploitation
88. I bid., paragraph 164. and Sexual Abuse, (CETS No. 201, Article 30, paragraph 3).
89. (Chamber), judgment of 23 September 1994, Hokkanen v. Finland, No. 19823/92; 92. Council of Europe Committee of Ministers Recommendation No. R (87) 20 on social reactions
paragraph 61. to juvenile delinquency, paragraph 4.

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122. 
T he architectural surroundings can make children very
In two cases against Germany, the time element was discussed by uncomfortable. Court officials should familiarise children,
the Court, which found that in cases of parent–child relationships inter alia, with the layout of the court, and identities of the
there is a duty to exercise exceptional diligence in view of the fact that
officials involved (Guideline 55). Even for adults, courthouses
the risk of passage of time may result in a de facto determination
can be rather oppressive or intimidating (Guideline 62). While
of the matter and that the relation of a child with one of his or
this is difficult to change, at least for existing court facilities, there
her parents might be curtailed.93
are ways in which treatment of children in these courthouses
can be improved by working with children in a more child-
sensitive way.
In the case of Paulsen-Medalen and Svensson v. Sweden, the
Court found that Article 6, paragraph 1 of the ECHR had been 123. Court facilities may include, where possible, special interview
violated since the authorities had not acted with the required rooms, which take the best interests of the child into account.
exceptional diligence when handling a dispute on access.94 Equally, child-friendly court settings may mean that no wigs or
gowns or other official uniforms and clothing are worn. This
can be implemented in view of the child’s age or the function of
Avoiding undue delay is also important in criminal cases. In the the official. Depending on the circumstances and on the views
case of Bouamar v. Belgium, an especially speedy judicial review of the child, it may well be that, for example, uniforms make it
was demanded in cases of detention of minors. Unjustified lapses clear to the child that he or she is talking to a police officer and
of time were hardly considered to be compatible with the speed not to a social worker, which has its relevance. This could also
required by the terms of Article 5, paragraph 4 of the ECHR.95 add to the feeling of the child that matters affecting him or her
are taken seriously by the competent authority. To sum up, the
setting may be relatively formal, but the behaviour of officials
5. Organisation of the proceedings, child-friendly should be less formal and, in any case, should be child friendly.
environment and child-friendly language
124. More importantly, child-friendly justice also implies that children
121. Child-friendly working methods96 should enable children to feel understand the nature and scope of the decision taken, and its
safe. Being accompanied by a person whom they can trust can effects. While the judgment and the motivation thereof cannot
make them feel more comfortable in the proceedings. The Council always be recorded and explained in child-friendly wording,
of Europe Convention on the Protection of Children against Sexual
due to legal requirements, children should have those decisions
Exploitation and Sexual Abuse (CETS No. 201)97 stipulates that a
explained to them, either by their lawyer or another appropriate
child may be accompanied by his or her legal representative or an
person (parent, social worker, etc.).
adult of his or her choice, but that the person should be considered
to be suitable. A reasoned decision can be taken against the 125. Specific youth courts, or at least youth chambers, could be set
presence of a given accompanying person. up for offences committed by children.98 As far as possible, any
referral of children to adult courts, adult procedures or adult
93. See European Court of Human Rights (Grand Chamber), judgment of 13 July 2000, Elsholz sentencing should not be allowed.99 In line with the requirement of
v. Germany, No. 25735/94, paragraph 49, and judgment of 8 July 2003, Sommerfeld v.
Germany, No. 31871/96, paragraph 63. the specialisation in this area, specialised units could be estab-
94. E uropean Court of Human Rights (Chamber), judgment of 19 February 1998,
Paulsen-Medalen and Svensson v. Sweden, No. 16817/90, paragraph 42. lished within law enforcement authorities (Guideline 63).
95. European Court of Human Rights (Chamber), judgment of 29 February 1988, Bouamar
v. Belgium, No. 9106/80, paragraph 63.
96. See W. McCarney, “The principles of child-friendly justice at international level”,
International justice for children, Monograph No. 3, Council of Europe Publishing, 98. U nited Nations Convention on the Rights of the Child, Article 40.3.
2008, pp. 119-127. 99. Council of Europe Committee of Ministers Recommendation No. R (87) 20 on social reac-
97. A
 rticle 35. 1. f. tions to juvenile delinquency, proceedings against minors, paragraph 5. 

84 85
Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice Explanatory memorandum

In several cases against the United Kingdom involving juvenile comfortable include, inter alia: guaranteed privacy (soundproof
offenders, the Court stressed that special measures have to be door between interviewing room and other rooms/premises);
taken to modify the adult courts’ procedure in order to attenuate rooms equipped in accordance with the child’s needs in order to
the rigours of an adult trial in view of the defendant’s young age. ensure physical and mental safety of the child during the interview,
For example, the legal professionals should not wear wigs and in the use of neutral colours and furnishings in the room which
gowns and the juvenile defendant should not be seated in a raised ensure that children can spend time comfortably (two sizes of
dock, but instead be allowed to sit next to his legal representative tables and chairs, a sofa or armchair, soft carpet); rooms equipped
or social worker. Hearings should be conducted in a way that with materials and other items useful in gathering information
their feelings of intimidation and inhibition could be reduced as from a child (coloured pencils, paper, dolls, etc.).
far as possible.

6. Evidence/statements by children
Following the cases of T. v. the United Kingdom and V. v. the 126. The issue of collecting evidence/statements from children is far
United Kingdom, where the national court settings were consid- from being simple. As standards are rare in this area (such as
ered to be intimidating for a child, a Practice Direction for Trial the United Nations Guidelines on Justice in Matters involving
of Children and Young Persons in the Crown Court was drafted. Child Victims and Witnesses of Crime),100 the need was felt to
The aim is to avoid intimidation, humiliation or distress for the address these issues, as the conduct of such interviews with
child on trial. Elements of this practice direction are, inter alia: regard to evidence/statements requires practical guidance.
the possibility for the child to visit the courtroom before the trial
to become familiarised with it, the possibility of police support to 127. As stipulated by Guideline 64, this should as far as possible be
avoid intimidation or abuse by the press, no wigs or gowns to be carried out by trained professionals. In the same context,
worn, the explanation of the procedure in terms the child can Guideline 66 recommends that when more than one interview is
understand, restricted attendance of court’s hearings, etc. needed, they should be carried out preferably by the same per-
son for reasons of consistency and mutual trust, but that the
number of interviews should be as limited as possible (Guideline
The Polish Ministry of Justice promotes and implements the 67).
concept of child-friendly interview rooms in co-operation with an
NGO. The main goal is to protect child witnesses and victims of
crime, especially crimes involving sexual and domestic violence,
through putting into practice principles of interviewing children
in child-friendly conditions and by competent staff. The procedure
ensures that children are interviewed by a judge in the presence 100. United Nations Guidelines on Justice in Matters involving Child Victims and Witnesses
of Crime (ECOSOC Res 2005/20, 22 July 2005), paragraph XI, 30, d.: “Use child-sensitive
of a psychologist. Other persons involved (prosecutor, lawyer, the procedures, including interview rooms designed for children, interdisciplinary services
accused, the private complainant) are present in a separate room for child victims integrated in the same location, modified court environments that take
child witnesses into consideration, recesses during a child’s testimony, hearings
and have the possibility to participate in the interview thanks to scheduled at times of day appropriate to the age and maturity of the child, an
communication systems between rooms, one-way mirrors and/or appropriate notification system to ensure the child goes to court only when necessary
and other appropriate measures to facilitate the child’s testimony.” It should be borne in
live broadcasting. Important details to make children feel more mind that these guidelines are about giving testimony in general, and not only criminal
proceedings.

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Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice Explanatory memorandum

128. For obvious reasons, specific arrangements should be made for 131. Although using audio or video recording of children’s statements
gathering evidence, especially from child victims, in the most has some advantages, as it serves to avoid repetition of often
favourable conditions. Allowing evidence to be given via audio, traumatic experiences, direct testimony in front of an interro-
video or TV link are examples of these practices, as is providing gating judge may be more appropriate for children who are not
testimony to experts prior to the trial, and avoiding visual or victims, but alleged perpetrators of crimes.
other contact between the victim and the alleged perpetrator
132. As already indicated, age should not be a barrier for the child’s right
(Guideline 68), or giving evidence without the presence of the to fully participate in the judicial process.101 Their testimonies
alleged perpetrator (Guideline 69). However, in particular cases, should not be presumed to be invalid or untrustworthy simply
such as sexual exploitation, video recordings for interviews may on the basis of their age, according to Guideline 73.
be traumatic for victims. The possible harm or secondary
victimisation resulting from such recordings therefore needs to 133. W here children are to be asked or they express the wish to give
be carefully assessed and other methods, such as audio recording, evidence in family proceedings, due regard should be given to
will need to be considered to avoid revictimisation and secondary their vulnerable position in that family and to the effect such
trauma. testimony may have on present and future relationships. All
possible efforts should be made to ensure that the child is made
aware of the consequences of the testimony and supported in
129. Member states’ procedural laws and legislation in this domain giving evidence by any of the means already referred to.
vary considerably, and there might be less strict rules on giving
evidence by the children. In any case, member states should The Court has recognised the specific features of proceedings
give priority to the child’s best interests in the application of concerning sexual offences. In the case of S.N. v. Sweden, the
legislation regarding evidence. Examples provided by Guideline 70 Court found that: “Such proceedings are often conceived of as an
include the absence of the requirement for the child to take an ordeal by the victim, in particular when the latter is unwillingly
oath or other similar declarations. These guidelines do not confronted with the defendant. These features are even more
intend to affect the guarantees of the right to a defence in the prominent in a case involving a minor. In the assessment of the
different legal systems; however, they do invite member states question of whether or not in such proceedings an accused has
to adapt, where necessary, some elements of the rules on evidence received a fair trial, account must be taken of the right of respect
so as to avoid additional trauma for children. In the end, it will for the private life of the perceived victim. Therefore, the Court
always be the judge who will consider the seriousness and validity accepts that in criminal proceedings concerning sexual abuse
of any given testimony or evidence. certain measures may be taken for the purpose of protecting the
victim, provided that such measures can be reconciled with an
adequate and effective exercise of the rights of the defence.”102
130. Guideline 70 also indicates that these adaptations for children
should not in themselves diminish the value of a given testimony.
However, preparing a child witness to testify should be avoided
because of the risk of influencing the child too much. Establishing
model interview protocols (Guideline 71) should not necessarily
be the task of the judges, but more that of national judicial 101. I bid., paragraph VI, 18.
102. European Court of Human Rights (First Section), judgment of 2 July 2002, S.N. v. Sweden,
authorities. No. 34209/96, paragraph 47.

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136. In many cases, and in particular in civil cases, the judgment
In the same case, attention was also given to the possibly leading does not necessarily mean that the conflict or problem is defi-
nature of some questions. To avoid the negative effects thereof, nitely settled: family matters are a good example, and they are
forensic psychology experts, with specific training and knowledge, dealt with by Guidelines 78 and 79. In this sensitive area, there
could be called upon.103 should be clear rules on avoiding force, coercion or violence in
the implementation of decisions, for example, visitation
arrangements, to avoid further traumatisation. Therefore,
In the case of W.S. v. Poland, the Court suggested possible ways parents should rather be referred to mediating services or
to test the reliability of a young child victim and pointed out that neutral visitation centres to end their disputes instead of having
this could be done in a less invasive manner than via direct court decisions executed by police. The only exception is when
questioning. Several sophisticated methods might be applied, such there is a risk to the well-being of the child. Other services,
as having the child interviewed in the presence of a psychologist such as family support services, also have a role to play in the
with questions being put in writing by the defence, or in a studio follow-up of family conflicts, to ensure the best interests of the
enabling the applicant or his lawyer to be present at such an child.
interview, via video-link or one-way mirror.104

In cases of enforcement of decisions on family law issues, such as

E. Child-friendly justice after judicial proceedings access and custody rights, the Court held on several occasions
that what is decisive is the question of whether national authorities
134. There are many measures which may be taken to make justice have taken all necessary steps to facilitate the execution as
child friendly after judicial proceedings have taken place. This can reasonably be demanded in the special circumstances of
starts with the communication and explanation of the given each case.
decision or judgment to the child (Guideline 75). This information
should be supplemented with an explanation of possible
measures to be taken, including an appeal or address to an
In Austria, the “Besuchscafe” offers children the possibility to stay
independent complaint mechanism. This should be done by the
in touch with both parents after a divorce or separation in a safe
child’s representative, that is, the lawyer, guardian ad litem or
and supportive setting. The right of access can be provided in
legal representative, depending on the legal system. Guidelines
special premises under the supervision of trained staff, to avoid
75, 77 and 81 refer to those representatives.
conflicts between the parents, whenever a visitation right is
135. Guideline 76 recommends that steps be taken without delay to exercised. This kind of accompanied visitation can be ordered by
facilitate the execution of decisions/rulings involving and the court or requested by one or both parents. The central issue
affecting children. is the well-being of the child and avoiding a situation where the
child is caught in the middle of a conflict between the parents.

137. Guidelines 82 and 83 deal with children in conflict with the law.
Particular attention is paid to successful reintegration into society,
103. I bid., paragraph 53.
104. European Court of Human Rights (Fourth Section), judgment of 19 June 2007, W.S. v.
the importance of non-disclosure of criminal records outside
Poland, No. 21508/02, paragraph 61. the justice system, and legitimate exceptions to this important

90 91
Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice Explanatory memorandum

principle. Exceptions could be made for serious offences, inter V. Promoting other child-friendly actions
alia, for reasons of public safety, and, when employment of
people for jobs working with children is concerned, if a person 139. It goes without saying that a real improvement in the area of
has a history of committing child abuse, for example. Guideline children’s rights and child-friendly justice requires a proactive
83 aims at protecting all categories of children, not only the approach by the Council of Europe member states, which are
particularly vulnerable ones. being encouraged to carry out a number of different measures.
138. In the case of Bouamar v. Belgium, the Court reviewed the 140. Sub-paragraphs a to d encourage research into this area, exchange
issue of a juvenile offender who was put in and out of an adult of practices, co-operation and awareness-raising activities in
prison nine times. Although detaining minors in adult prisons particular by creating child-friendly versions of legal instruments.
was at the time allowed under the youth protection law, the They also express support for well-functioning information
European Court of Human Rights concluded that: “The nine offices for children’s rights.
placement orders, taken together, were not compatible with
under sub-paragraph d, Article 5.1. The repeated incarceration 141. Investing in children’s rights education and the dissemination
had the effect of making each placement order less and less of children’s rights information is not only an obligation under
‘lawful’ under sub-paragraph d, Article 5.1, especially as the the United Nations Convention on the Rights of the Child,106 but
Crown Counsel never instituted criminal proceedings against is also a preventive measure against violations of children’s
the applicant in respect of the offences alleged against him.”105 rights. Knowing one’s rights is the first prerequisite of “living”
one’s rights and being able to recognise their violation or potential
violation.107
The British foundation Barnardo’s developed the Children’s
Advocacy Service for young people in several institutions for
young offenders throughout the United Kingdom, providing them Many organisations have been making child-friendly versions of
with independent advocacy, assisting them with issues relating the United Nations Convention on the Rights of the Child and
to welfare, care, treatment and planning for resettlement while other relevant documents on children’s rights. One example is
they are detained. Besides face-to-face meetings within one week the child-friendly version of the United Nations Guidelines on
of incarceration, young people can contact the service or rely on Justice in Matters involving Child Victims and Witnesses of Crime,
a free helpline. The advocacy service helps young people to by UNICEF and the United Nations Office on Drugs and Crime.
understand the system and get in contact with the relevant
professionals to help them solve their problems.

106. A rticle 42: “States parties undertake to make the principles and provisions of the
Convention widely known, by appropriate and active means, to adults and children
105. European Court of Human Rights (Chamber), judgment of 29 February 1988, Bouamar alike.”
v. Belgium, No. 9106/80, paragraphs 52-53. 107.See also Berro-Lefèvre, op.cit., pp. 74-75.

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142. Measures envisaged under sub-paragraphs e to g aim to facilitate 147. In this respect, the maintenance or establishment of a framework,
children’s access to courts and complaints mechanisms, and including one or more independent mechanisms (such as
consider a number of possible measures in this respect (estab- ombudspersons or children’s ombudspersons) is of paramount
lishment of specialised judges and lawyers, facilitation of the importance for the promotion and monitoring of the imple-
role of civil society and independent bodies at national, regional mentation of these guidelines.
and universal level). In this domain, states should envisage the
use of collective complaints. A good example of the collective 148. Lastly, it is plain that the civil society organisations, institutions
complaints mechanism of the revised European Social Charter and bodies promoting and protecting the right of the child
(ETS No. 163) is that it is accessible, no individual victim is should be given an active role in the monitoring process.
needed and not all domestic remedies need to be exhausted.
Children’s ombudspersons, children’s rights NGOs, social
services, etc. should be able to lodge complaints or start pro-
cedures in the name of a specific child.

143. It is worth noting that new strategies are also promoted at inter-
national level, such as the aforementioned campaign in favour
of a complaints procedure under the United Nations Convention
on the Rights of the Child.

144. Sub-paragraphs h to i focus attention on the need for appropriate

education, training and awareness-raising measures, while sub-
paragraphs j to k express support for appropriate specialised
structures and services.

VI. Monitoring and assessment

145. Member states are encouraged to carry out a number of

measures to implement these guidelines. They should ensure
their wide dissemination among all authorities responsible for
or otherwise involved with the defence of children’s rights. One
possibility would be the dissemination of the guidelines in its
child-friendly versions.

146. Member states should also ensure a review of domestic legislation,

policies and practice in keeping with these guidelines, and a
periodic review of working methods in this area. They are also
invited to prescribe specific measures for complying with the
letter and spirit of these guidelines.

94 95
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96
 m o n o g r a p h
The guidelines on child-friendly justice, and their explanatory memorandum,
were adopted by the Council of Europe in 2010. Based on existing inter- 5
5
national and European standards, in particular the United Nations Convention
on the Rights of the Child and the European Convention on Human Rights,

Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice

the guidelines are designed to guarantee children’s effective access to and
adequate treatment in justice. They apply to all the circumstances in which
children are likely, on any ground and in any capacity, to be in contact with
the criminal, civil or administrative justice system. They recall and promote
the principles of the best interests of the child, care and respect, participation,
equal treatment and the rule of law. The guidelines address issues such as infor-
mation, representation and participation rights, protection of privacy, safety, a
multidisciplinary approach and training, safeguards at all stages of proceedings
and deprivation of liberty.
The 47 Council of Europe member states are encouraged to adapt their
legal systems to the specific needs of children, bridging the gap between

BUILDING A EUROPE FOR AND WITH CHILDREN

internationally agreed principles and reality. To that end, the explanatory
memorandum offers examples of good practices and proposes solutions to
address and remedy legal and practical gaps in justice for children.
These guidelines form an integral part of the Council of Europe’s strategy on
children’s rights and its programme “Building a Europe for and with children”.
A series of promotion, co-operation and monitoring activities are planned in
member states in view of ensuring effective implementation of the guidelines
for the benefit of all children.

Guidelines of the
www.coe.int
Committee of Ministers
of the Council of Europe
The Council of Europe has 47 member states, covering virtually the entire
continent of Europe. It seeks to develop common democratic and legal on child-friendly justice
principles based on the European Convention on Human Rights and other
Council of Europe Publishing

reference texts on the protection of individuals. Ever since it was founded

in 1949, in the aftermath of the Second World War, the Council of Europe
has symbolised reconciliation.

ISBN 978-92-871-7274-7

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e15/US$30 Council of Europe Publishing