Opinion: implementing guidelines would make a big difference for asylum-seeking children engaging with administrative tribunals
The Child Friendly Justice Guidelines are the work of the Council of Europe of which Ireland is a member. These guidelines set out rudimentary rules for European states to follow when adapting their justice systems to the specific needs of children. The guidelines are classified as soft law, that is a non-binding legal instrument. They define Child Friendly Justice as "justice that is accessible, age appropriate, speedy, diligent, adapted to and focused on the needs and rights of the child, respecting the rights of the child including the right to due process, to participate in and to understand the proceedings, to respect for private and family life and to integrity and dignity".
There are five key principles emanating from the guidelines; participation, best interests, dignity, protection from discrimination and the rule of law. Should each of these principles be considered and incorporated into the international protection process, then the landscape should be entirely different for asylum-seeking children engaging with administrative tribunals.
The first of these principles is that of participation: "the right of all children to be informed about their rights, to be given appropriate ways to access justice and to be consulted and heard in proceedings involving or affecting them should be respected. This includes giving due weight to the children’s views bearing in mind their maturity and any communication difficulties they may have in order to make this participation meaningful".
By providing a child with the opportunity to participate, you are also safeguarding their best interest
The facilitation of a child’s participation in a matter that concerns him or her is of fundamental importance in respecting and upholding the rights of children. Supporting the participation of children within the process allows a child to feel listened too; that their voice has been heard, it provides the child with a sense that they are important and that they too are worthy of contributing to the issue that is currently before a court or administrative tribunal.
The best interests of the child is considered to be the second of the five fundamental principles. "Member States should guarantee the effective implementation of the right of children to have their best interests be a primary consideration in all matters involving or affecting them". It is generally accepted that this is the correct and almost universal position, that the best interests of the child would be the primary consideration although not the absolute consideration.
By providing a child with the opportunity to participate you are also safeguarding their best interests. "In assessing the best interests of the involved or affected children: firstly, their views and opinions should be given due weight, secondly, all other rights of the child, such as the right to dignity, liberty and equal treatment should be respected at all times; and thirdly, a comprehensive approach should be adopted by all relevant authorities so as to take due account of all interests at stake, including psychological and physical well-being and legal, social and economic interests of the child".
By insuring that a decision maker is aware of a child’s right to dignity, this will also ensure that a child is respected throughout the determination procedure
The third fundamental principle is that of dignity. "Children should be treated with care, sensitivity, fairness and 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 and non-judicial proceedings or other interventions, and regardless of their legal status and capacity in any procedure or case". By insuring that a decision maker is aware of a child’s right to dignity, this will also ensure that a child is respected throughout the determination procedure.
Just like adults, children too are entitled to protection from all forms of discrimination. "Specific protection and assistance may need to be granted to more vulnerable children, such as migrant children, refugee and asylum-seeking children, unaccompanied children, children with disabilities, homeless and street children, Roma children and children in residential institutions". While the committee must be commended for recognising that asylum seeking and refugee children may be at greater risk of being subject to discrimination, perhaps precise procedural safeguards for these children could have been suggested.
The final fundamental principle relates to the rule of law. "The rule of law principle should apply fully to children as it does to adults. Elements of due process such as the principles of legality and proportionality, the presumption of innocence, the right to a fair trial, the right to legal advice, the right to access to courts and the right to appeal, should be guaranteed for children as they are for adults and should not be minimised or denied under the pretext of the child’s best interests. This applies to all judicial and nonjudicial and administrative proceedings. Children should have the right to access appropriate independent and effective complaints mechanisms".
Asylum-seeking children engaging with administrative tribunals have the same due process rights as adults. The difficulty remains, however, for children to see their rights recognised and procedures adapted accordingly in the area of international protection.
The views expressed here are those of the author and do not represent or reflect the views of RTÉ