Courts and judicial proceedings

The rights of children and young people during judicial proceedings are protected in the UNCRC (Articles 9, 12, 31 and 40), the Beijing Rules (Rule 11) and a range of related international standards, treaties, rules and conventions. Article 12 of the UNCRC provides the most direct statement of support for the principle that children and young people should be afforded opportunities to participate in decisions that affect them including ‘the opportunity to be heard in any judicial and administrative proceedings’. While the right to a fair trial is a cornerstone of criminal justice, failure to adequately adapt formal court processes to the needs of children and young people may undermine this fundamental principle (Australian Law Reform Commission (ALRC) 1997; Carlile 2014).

The evidence suggests that most children, young people and their families struggle to understand court processes, decisions and their implications. This can be partly attributed to complicated court procedures and legal jargon, as well as insufficient time for meetings between children and young people and their lawyers (Sheehan and Borowski 2013). Understanding and engaging with court processes can also be hindered by poor education, limited proficiency in the English language, fear and anxiety, mental health disorders and/or cognitive disabilities/ neurodisabilities (O’Connor and Sweetapple 1988; Weijers 2004; Rap 2016).

In youth courts in Australian jurisdictions and in England and Wales, no specialist training or professional accreditation is required in order for lawyers to represent children and young people in criminal proceedings, contrary to recommendations by the United Nations Committee on the Rights of the Child (2007). Many youth justice experts have also drawn attention to the fact that children and young people are often inadequately represented in court proceedings (Schetzer and Henderson 2003; National Children’s Bureau and the Michael Sieff Foundation 2013; Sheehan and Borowski 2013; Carlile 2014; Just for Kids Law and the Children’s Rights Alliance for England 2019).

Although most children and young people in Australian jurisdictions and in England and Wales have their matters heard in specialist youth courts, some are tried in adult courts including: children and young people co-accused with adults (who may be tried in an adult magistrate’s court) and those facing charges for serious offences who can be committed to a higher (Crown) court before a judge and jury. Further, in Australia it is not uncommon - outside of the capital cities - for the local non-specialist magistrate (who normally hears adult matters) to convene a youth court and the evidence from our research suggests that non-specialist magistrates presiding in children’s cases are more punitive than their counterparts who sit in specialist youth courts.

In England and Wales, the numbers of children and young people prosecuted and processed through the youth justice system has decreased significantly in the post-2008 period (Youth Justice Board and Ministry of Justice 2019; see also Chapter 2). Paradoxically, however, this trend has further compromised human rights in so far as corresponding decreases in youth court sittings have had the effect that children and young people are appearing more often in adult magistrate’s courts where, as stated above, magistrates lack specialist training and experience, where children and young people are often intimidated by the formality of the adult courts, where there are no automatic reporting restrictions and/or public exclusion obligations and as such ‘the courts are open to the public and the presumption of anonymity that applies in the youth courts is reversed’ (Children’s Rights Alliance for England 2015: para 230) and, finally, where it also increases ‘the likelihood that children will come into contact with adult defendants’ (ibid: para 231). Indeed, Carlile (2014: 5) found that ‘the increasing use of adult courts for children is an issue of serious concern’ in England and Wales where it ‘frustrates the principle that children will be treated differently from adults in reflection of their young age and makes poor use of the resource of specialist youth courts’ (ibid: 5). Carlile also determined that, in particular, the adult Crown Court is ‘inappropriate for children; its intimidating nature and lack of youth specific expertise’ prevents effective sentencing and participation in court proceedings and ‘ultimately, contravene[s] the right of children to a fair trial’ (ibid: x). Such a finding has particular resonance given the high-profile case of T and V v the United Kingdom 1999 in which the European Court of Human Rights ruled that the three-week trial of two 10-year-old-boys in public in a Crown Court was a violation of their right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR).

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