GUIDELINES ON CHILD-FRIENDLY LEGAL AID

Children come into contact with the law for various reasons – as defendants or witnesses in criminal proceedings; as parties in family proceedings; as victims of physical or psychological violence, sexual abuse or other crimes or rights violations; and as parties in civil or administrative proceedings on issues including health care, social security, disability, and asylum and refugee claims. The outcomes of these cases can be hugely significant for the children’s lives in both the long term and the short term. They can determine whether the children go into detention, whom they will live with, what contact they can have with their parents and siblings, which country they will live in and where they will go to school.

Most children who are in contact with the law find the actual experience of legal proceedings confusing at best and a source of fear, distress and secondary victimization at worst. It is not unusual for them
to find it difficult to communicate with the adults involved, to mistrust police and judges, to lack basic information and understanding about processes and procedures, and to face discrimination because of their age, gender or other characteristics such as living and working on the street or seeking asylum. Recalling painful events can be very stressful for child victims and witnesses, and if the legal procedure is not child-sensitive it may have long-term and harmful consequences for their recovery. However many legal systems do nothing – or very little – to enable children to participate in proceedings in a safe, meaningful and dignified manner.

One important building block for a child-friendly justice system is for children to have access to expert, specialized and trusted legal practitioners. Such practitioners can make an enormous difference to a child’s experience of the justice system and to the outcome of the case.

UNICEF’s Europe and Central Asia Regional Office (UNICEF ECARO) conducted research on children’s access to justice in 2015 (Children’s Equitable Access to Justice, Central and Eastern Europe and Central Asia, UNICEF, Geneva, 2015). One of the findings of the research was that there was a lack of guidance for legal practitioners in the region when providing children with support and assistance to access justice. In response to this, these Guidelines have been developed to be a practical tool to support both experienced and newly qualified legal practitioners in their daily work on the frontline of children’s rights.

The Guidelines are aimed at government-funded and private lawyers, paralegals and other legal practitioners who provide legal aid to children in civil, criminal, administrative and restorative justice proceedings, and who represent children in cases addressed by national, regional and international human rights monitoring bodies. They are aimed primarily at practitioners representing children directly rather than lawyers who are representing a child as an independent guardian or ‘friend’ of the court.

The Guidelines focus on the attitudes, knowledge and skills that are required for a child client to receive the best possible legal representation and support. They take into account the fact that practitioners are often working within imperfect justice systems and are grappling with low pay, inadequate legislation, lengthy delays in proceedings and lack of access to child-friendly services for their clients.

UNICEF ECARO developed the Guidelines in close collaboration with a network of over 20 legal practitioners in 12 different countries in the region. It is hoped that they are also relevant for practitioners in other regions. The legal practitioners involved completed a detailed questionnaire on the content of the Guidelines, piloted them in their day-to-day work and contributed substantially to their development and their practical application. Quotations from some of these lawyers are included in the Guidelines.

Lawyers in almost all jurisdictions are bound by professional codes of conduct and ethics. The most typical principles worldwide are that lawyers must act with honesty and integrity, act in their clients’ best interests, uphold the rule of law, not act where is a conflict of interests and maintain their client’s confidentiality. These Guidelines are designed to complement professional codes and to consider how they can be applied when dealing with children.

The Guidelines are rooted in international and regional standards regarding children’s access to justice (please see the Resources section below for a list of relevant instruments and guidelines). They start by examining the four general principles of the United Nations Convention on the Rights of the Child – the right to non-discrimination; the right to life, survival and development; the right to be heard; and the principle that the best interests of children should be a primary consideration in decision making that affects them – and how these should inform the work of legal practitioners.

The next sections are structured around key themes and challenges that arise in providing child- friendly legal aid to children, including: ensuring competency to act, acting in a child’s best interests, communicating in a child-friendly way, facilitating a child’s participation in legal proceedings, countering and preventing discrimination, keeping children safe, and working with others. Although the Guidelines cannot describe every situation or circumstance confronting legal practitioners who provide legal aid to children, it is hoped that they provide a strong and practical framework for action that promotes and supports children’s access to justice.