Leiden Law Blog

Child-friendly Judgments :-)

Posted on by Ton Liefaard in Private Law
Child-friendly Judgments :-)

In January 2017, two children challenged a children’s court judge in Rotterdam (the Netherlands) in a case concerning the appointment of a new guardian ad litem. The judge was accused of having disregarded a letter sent by the children. They additionally claimed that the judge was merely using the procedure to force them to talk to her, without the assistance of a lawyer or other representative. The claim was rejected by the special court established to review the challenge brought by the children (ECLI:NL:RBROT:2017:911). It is interesting to note that the special court’s judgment was formulated in – as the court put it – ‘a language that children can understand’. By making use of short summaries and interim conclusions, the court tried to explain the steps that had led to the final judgment. The legal grounds of the judgment were also formulated in a less formal way.

This judgment is one of the first examples of Dutch courts trying to make their judgments more accessible and understandable for children. This year, on 21 March, the Court of Appeal of Arnhem-Leeuwarden tried something similar in a child protection case, by directing one specific paragraph (5.9) towards the child in order to explain the court’s conclusions (i.e. relating to child custody) in a child-friendly manner. One day later, in a case concerning a child’s habitual residence, the District Court of Utrecht wrote an entire judgment in a language that was more accessible for the child involved.

The Dutch courts are not alone in their attempt to increase the child-friendliness of their rulings. In February 2016, a High Court judge in England wrote a judgment in child-friendly language. This case concerned a restriction order between a father and his children, since the father had tried to take the children to Syria under the guise of a trip to Disneyland in Paris. The judgment was relatively short and written in a more accessible way. The judge used short sentences combined with a legal summary at the end of every paragraph (‘In legal language, I make these findings …’). This case received a lot of attention, in England and abroad. Commentators pointed out that this was the first case where a judge even made use of emoji features :-) .

These cases, and I may have missed other examples, show that there are judges who are well aware of the importance of judgments being sufficiently accessible and understandable for the children involved in the proceedings, or affected by the decisions. Hence, they try to change the language and use less formal wording or jargon in order to let children understand the decision and also the reasoning behind it. This fits the international concept of ‘child-friendly justice’ that focusses on broadening the possibilities for children to engage with and participate effectively in legal procedures, including court proceedings. Child-friendly justice means that legal proceedings should be accessible for children, bearing in mind the age and maturity of the child, and taking their special rights and needs into account. The concept is further elaborated in the Guidelines on child-friendly justice of the Council of Europe (2010), which calls upon states to safeguard child-friendly information, legal assistance by an assigned lawyer, the involvement of parents, effective participation during the court sessions and feedback about the decision once the judgment is made. With regard to the latter, the Guidelines emphasize the importance of ‘judgments and court rulings affecting children (…) explained to them in a language that children can understand, particularly those decisions in which the child’s views and opinions have not been followed’ (First part, Ch. IV, Guideline 49).

As such the Guidelines are considered to be soft -law, but the underlying concept emerged on the basis of the binding judgments of the European Court of Human Rights (see Liefaard 2016) and are strongly influenced by the UN Convention on the Rights of the Child, in particular art. 12 CRC, and the interpretation given by the UN Committee on the Rights of the Child in General Comment No. 10, Children’s rights in juvenile justice (CRC/C/GC/10) and General Comment No. 12, The right of the child to be heard (CRC/C/GC/12). More recently, the European Court started to refer to the Guidelines on child-friendly justice in its case law, which opens the way to a more legally binding status for these guidelines (see also Liefaard 2016).

The Guidelines on child-friendly justice has its equivalents in other parts of the world. In May this year, the International Association of Youth and Family Judges and Magistrates (IAYFJM) released its Guidelines on Children in Contact with the Justice System. These guidelines are intended for practitioners who work with children, as well as for policy makers, legislators and all others who are interested in children and their rights. Besides this international document, some regional documents have arisen as well. Examples are the Guidelines on Action for Children in the Justice System in Africa, the Guidelines of a Justice Adapted to children of the Mercosur part of South America and Thematic Guidelines that have been issued by the U.S. National Council of Juvenile and Family Court Judges, for example the Enhanced Resource Guidelines on a better court practice in child abuse and neglect cases. Furthermore, the Guidelines on child-friendly justice have generated a lot of attention at the European level, resulting in research commissioned by the European Union and a wide variety of activities (awareness-raising, training etc.) and strategies to support the implementation of child-friendly justice in practice. See for example the checklist for professionals developed recently by the European Union Agency for Fundamental Rights.

In light of child-friendly justice, we should encourage the initiatives of the court and judges in the above-mentioned cases. Judicial professionals investing in making their judgments accessible and understandable for children should be seen as a testament of courage and leadership. All the more, since child-friendly writing is anything but simple. The judges in the Netherlands have clearly sought for room to do so, within the standard format they tend to use. Notwithstanding this noble effort, still a lot of legal jargon can be found within the judgment, and the same goes for the use of double negatives, among others. Common-law systems, like the British system, provide more space and flexibility for a judge, which could help to make judgments easier to read and therefore more accessible for children. The Dutch legal system traditionally leaves less space for elaborations. Yet, the first steps have been taken. In my view, the above-mentioned initiatives deserve a broad follow-up, bearing in mind the legal context and traditions judges find themselves in.

This blog has been based on an editorial published by the author in the Dutch Journal of Family and Child Law (Tijdschrift voor Familie- en Jeugdrecht, Kluwer) in April 2017.

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