Access to justice is a fundamental right for all, however, children with disabilities face significant barriers to exercising this right. These barriers can prevent them from participating fully and fairly in judicial proceedings, making them particularly vulnerable within legal systems. This blog explores the international legal framework designed to address the challenges faced by children with disabilities to access justice effectively.
There are several international treaties and conventions that specifically address the rights of children with disabilities. These include:
1. Convention on the Rights of the Child, 1989 (CRC)
The CRC is a cornerstone document outlining the rights of children. Article 12 of the Convention protects the right of a child to be heard in any judicial or administrative proceeding affecting them. Further, Article 40 guarantees protection for children in conflict with the law, securing their right to be informed of charges, receive legal assistance and for their privacy to be respected. General Comment No. 9 (CRC) underlines the importance of having trained professionals who have prior experience with children with disabilities to ensure proper care and consideration in the juvenile justice system.
2. Convention on the Rights of Persons with Disabilities, 2006 (CRPD)
The CRPD is a key international treaty addressing the rights of persons with disabilities. Article 7 of the Convention calls upon States to ensure that children with disabilities are heard in all matters affecting them and that their views be given weight in accordance with their age and maturity. Article 13 ensures access to justice, requiring States to provide age-appropriate accommodations to facilitate the effective participation of persons with disabilities in legal proceedings, including training for justice professionals such as police and prison staff.
3. International Principles and Guidelines on Access to Justice for Persons with Disabilities
Principle 2 mandates that facilities and services be universally accessible, while Principle 3 affirms the right to appropriate procedural accommodations, such as intermediaries or facilitators, modifications to questioning methods, and communication support. The guidelines stress that these adjustments should be made before proceedings begin to ensure effective participation.
4. European Union Directive 2016/800
The Directive provides additional safeguards for children who are suspects or accused persons in criminal proceedings. It emphasizes the need for an individual assessment of the child, considering specific vulnerabilities such as learning disabilities or communication difficulties. It also guarantees a right to a fair trial, including assistance from a lawyer and the right to be accompanied by a parent or guardian throughout the legal process.
Despite the robust international legal framework, significant gaps result in barriers to accessing justice for children with disabilities. A key hurdle is the lack of data on cases pertaining to children with disabilities, particularly survivors of sexual offences or children in conflict with law. This data gap hampers the development of targeted policies. Moreover, there is no uniform protocol to enable the participation of children with disabilities in judicial proceedings, leading to inconsistencies and inadequate support. There is also a need to sensitise professionals working within the justice system, including police officers, judges, and lawyers, as they lack a comprehensive understanding of the unique challenges and grievances of children with disabilities, thus exacerbating their vulnerability. Furthermore, children with disabilities frequently encounter infrastructural and procedural barriers that prevent them from effectively participating in legal proceedings, including inaccessible courtrooms, the use of legal jargon and insufficient communication support.
A robust framework for facilitating access to justice for children with disabilities must be developed by ensuring compliance with the international principles and guidelines. This involves drafting specific protocols to make justice systems accessible to children with disabilities and their caregivers, designing and implementing, training programmes for professionals working within the justice system, and ensuring access to legal aid in a comprehensive manner. Protocols and standard operating procedures (SOPs) must be developed, particularly for police interview procedures, to ensure that statements and First Information Reports (FIRs) involving children with disabilities are handled with the utmost care and sensitivity.
Access to justice for children with disabilities is not just a legal obligation but a moral imperative. The international legal regime provides a strong foundation for ensuring access to justice for children with disabilities Structural and systemic reforms that are mindful of and responsive to the distinct needs of children with disabilities will ensure that they are fully and equally heard, respected, and supported within the justice system, and their rights realized and protected.
