This module is a resource for lecturers
Topic one - The role of the justice system
At the close of the 13th session of the UN Congress on Crime Prevention and Criminal Justice, the international community affirmed “justice” as a globaly priority, by adopting the Doha Declaration. The Doha Declaration recognizes “the importance of effective, fair, humane and accountable crime prevention and criminal justice systems and the institutions comprising them as a central component of the rule of law” (Doha Declaration, Para 3). This authoritative normative instrument affirms that justice must be administered in a manner that is consistent with the international legal framework. Effective justice systems require the establishment and observance of a strong legal framework of accountability in instances where individuals are alleged as, accused of or recognized as having infringed the penal law. Integral to this is ensuring that such persons are treated in a manner that is consistent with their human dignity, and that upholds due process rights and their prospects for rehabilitation, while also safeguarding the rights of victims. It is through this approach that effective, fair, accountable and humane justice institutions engender trust and contribute to the rule of law.
It is widely understood that strong institutions that deliver effective justice responses play a fundamental role in both upholding the rule of law and promoting human rights. For example, children who enjoy the protections offered by the rule of law are more likely to enjoy the fulfilment of their human rights, including rights specifically for children, as enshrined in the Convention on the Rights of the Child (CRC). The importance of strong justice institutions is also a global focus due to the Sustainable Development Goals (SDGs), and the objective of Goal 16 to “promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels” (Sustainable Development Knowledge Platform).
Yet ensuring “justice for all” – including justice for children, requires an understanding that justice is not a unitary or simple concept. Rather, justice can be conceptualized as multi-modal, encompassing both formal and informal systems of civil, criminal and administrative justice; as well as economic, social and cultural justice (Davidson et al, 2019a, p. 7). The various components of the justice system each play a part in building a culture of lawfulness.
Access to justice
Access to justice refers to the capability of citizens to demand and obtain response through formal or informal justice institutions, in compliance with rule of law principles and human rights standards. A comprehensive concept of “access to justice” has dimensions of both supply and demand, insomuch as it implies the need to deliver justice in a fair, equitable and effective manner, and, at the same time, empower people to demand justice remedies. Legal empowerment is fundamental to ensuring that “people can claim their rights and entitlements, allowing them to reach their full potential” (Pathfinders for Peaceful, Just and Inclusive Societies, 2019, p. 30).
A child rights-based approach means that children should enjoy access to justice without discrimination of any kind; all decisions should consider the best interests of the child as a primary consideration; and children should have the right to actively participate in justice processes that affect them. (For more on children’s role in determining their best interests see John Eekelaar’s seminal article on dynamic self-determinism (1996)). Access to justice for children “implies legal empowerment of children and access to justice mechanisms and remedies that are child-sensitive” (Liefaard, 2019, p. 196). Accordingly, the Special Representative of the Secretary-General on Violence against Children (SRSG – VAC) clarifies that children’s access to justice is not merely about the provision of justice, but also about realizing children’s rights to seek and obtain justice:
Children’s access to justice requires a system that fully respects and protects the rights of the child; and also a system that children understand, trust and feel empowered to use, including when they are exposed to violence as victims, witnesses and alleged offenders. (Santos Pais, 2015, p. 18)
Access to justice is a right for all children, including victims, witnesses, and children alleged as, accused of or recognized as having infringed the penal law. Yet there are many legal, social, cultural and economic obstacles to accessing justice, and children may face additional barriers due to the fact that they may be unaware of their rights and/or, in many jurisdictions, children may not hold the legal right to initiate formal or informal justice proceedings. This means that while many children simply lack access to justice altogether, when children are involved with justice systems (as victims, witnesses, or alleged as, accused of or recognized as having infringed the penal law) this involvement has often been initiated by adults and, furthermore, is often conducted in accordance with laws and procedures that are designed largely by (and often for) adults. As noted in Guidance Note of the Secretary-General: UN Approach to Justice for Children:
Access to justice, though increasingly recognized as an important strategy for protecting the rights of vulnerable groups, and thus for fighting poverty, rarely takes children into account” (United Nations, 2008).
International child rights scholars concur, noting that [d]espite the growing attention within the international and regional communities, access to justice has neither been carefully conceptualized, nor contextualized, in relation to children (Liefaard, 2019, p. 198).
This oversight is concerning, particularly in respect of advances in neurodevelopmental science, which demonstrate that children and adolescents are qualitatively different from adults (with differences in behaviour, psychological processing, and neurological functioning) (Lam and Sim, 2013). While an in-depth analysis of this evidence-base is outside the scope of this Module – neurodevelopmental science demonstrates the importance of specialized juvenile justice responses in three key ways:
- by advancing understandings of adolescence as a time of risk taking (including, for example, the recognition that the neurobiological system responsible for mature judgment, has not yet fully developed, and that this impedes a child’s ability to regulate behaviour, or to properly cognise cause and effect) (Romer, 2010);
- by demonstrating the neurobiological consequences of childhood trauma, including the adverse alteration of neural pathways, and the prevalence of regulatory deficits that are associated with increased stress hormones and underdeveloped pre-frontal functioning (Delima and Vimpani, 2011). (This underscores the importance of preventing the trauma that children can experience in harsh/adult justice systems that are not sensitive to their developmental stage); and
- by illustrating that the rapid neurological development that occurs during childhood means that children are especially responsive to supports aimed at facilitating their well-being, and their prospects of assuming a constructive role in society.
Overall, advances in developmental psychology and neurodevelopmental science underscore the importance of ensuring that justice for children receives special attention in broader efforts to achieve equal access to justice for all.
In recognition of the fact that children have been “largely invisible” in terms of efforts to achieve equal access to justice for all (SDG 16.3), the Pathfinders for Peaceful, Just and Inclusive Societies has embarked on a multi-year project on justice for children. Having launched a Roadmap, a Call to Action, and a longer paper on The Challenge to Achieve SDG 16+, the Pathfinders project on Justice for Children aims to “overcome the challenges children face in accessing legal justice, but also promoting justice as an enabler of children’s opportunities and development to their full potential” (Davidson et al, 2019a, p. 3).
Next: Topic two - The Convention on the Rights of the Child and the International Legal Framework on Children’s Rights