Access to justice, defined as one’s ability to obtain a just and timely remedy for violations of rights, is a fundamental right and an essential prerequisite for the protection and promotion of all other human rights (Human Rights Council, 2013, para. 3).

As per article 2 (3) ICCPR, all persons, including children, whose rights have been violated have the right to an effective remedy.

Access to justice essentially revolves around accountability. It arises from the recognition that human rights entail a duty on States Parties to respect, protect and fulfil human rights. (Human Rights Council, 2013; Liefaard, 2019)

• Legislation is necessary for ensuring the implementation of rights, defining responsibilities and obligations, holding duty bearers accountable, and providing to effective remedies at the domestic level.
• States Parties must ensure that all persons have the right to have their claims determined by competent judicial, administrative and legislative authorities, or by any other competent authority provided by the legal system of the State Party, that shall enforce the remedies when granted. States Parties must develop the possibilities of judicial remedies for rights violations (article 2 (3) ICCPR).
  • Remedies can involve, where appropriate, compensation as well as “restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition and changes in relevant laws and practices” (HRC GC 31, para. 16).

The CRC Committee states that the requirement for effective remedies to redress violations of children’s rights is implicit in the CRC (CRC GC 5, para. 24). Ensuring that the provisions of the CRC are justiciable is an essential element of legislative reforms.

Because of children’s special and dependent status, they often face difficulties when pursuing remedies for rights violations (CRC GC 5, para. 24; preamble OPIC). Therefore, States Parties need to give particular attention to ensuring that there are effective, child-sensitive procedures available to children and their representatives (CRC GC 5, para. 24).

• Research shows that children not only face the same obstacles to justice as adults, but they also face other specific obstacles because of their dependent status. These include, for example, the fact that children depend on adults to obtain information on their rights and where to seek help, to navigate and understand the justice system and to pay for related expenses. In most countries, age restrictions make it impossible for children under a certain age to initiate and participate in proceedings. Judicial and administrative procedures are generally not adapted to support the participation of children; specialisation of professionals is lacking, or superficial, legal aid is insufficient and support services are rare. Also, social norms still often make it unacceptable for children to seek redress when their rights are violated.
• Barriers to children’s access to justice at the national level will also impede their access to justice at the international level

Children’s access to justice encompasses their right to be heard and to participate effectively in legal proceedings in accordance with article 12 CRC (UNICEF 2015; Liefaard, 2019). This requires taking an overarching child-sensitive approach to proceedings involving children, adapted to children’s individual needs and circumstances, and giving children:

• the opportunity to participate meaningfully;
• the opportunity to express themselves;
• information about processes in which they are involved, adapted to their age, maturity and circumstances, in a language they understand and, in a gender- and culture-sensitive manner (in line with article 17 of the CRC);
• an explanation of the consequences of decisions affecting them (UN Human Rights Council 2014, para. 7).

When accessing justice, children have the right to be protected against harm. States Parties must ensure that protective measures for children are effective, including through judicial mechanisms if appropriate (see also e.g. CRC article 19(2)).

Access to justice also encompasses the rights to reparation, recovery and social reintegration, in line with article 39 CRC (CRC GC 5, para. 24). See also the Rules of procedure under OPIC (rule 27(4)), which provide: “In the event that the Committee finds that the State party has violated its obligations under the Convention or its substantive Optional Protocols to which the State is party, it will make recommendations on the remedies for the alleged victim(s), such as, inter alia, rehabilitation, reparation, financial compensation, guarantee of non-repetition, requests to prosecute the perpetrator(s), as well as indicate the time limit for their application. The Committee may also recommend that the State party take legislative, institutional or any other kind of general measures to avoid the repetition of such violations.” (see further Liefaard 2023).

All legal guarantees and safeguards of judicial and related processes must be respected, including due process (fairness), the right to privacy, a guarantee of legal aid in the same or more lenient conditions as adults, and the right to challenge decisions with a higher judicial authority (UN Human Rights Council 2014, para. 9).

Children should have access to legal and other assistance (CRC GC 5, para. 24), which is connected to their legal empowerment (UN Human Rights Council 2013, para. 5).

Children should have their own legal counsel and representation in their own name, in particular in proceedings where there could be a conflict of interest between the child and the parent(s)’ interests (UN Human Rights Council 2014, para. 11).

Legislation should recognise children’s right to an effective remedy. Legislative provisions should also establish children’s legal competence (legal standing) (Liefaard 2019). E.g.: The South African Children’s Act grants every child the right “to bring, or to be assisted in bringing, a matter to a court, provided that matter falls within the jurisdiction of that court” (Section 14).

Legislation should also recognise that others, in particular legal representatives (parents, legal guardians, etc.), can access justice on behalf of children (see also article 18 CRC; Liefaard 2019).

Legislation should also make provisions for children’s representation in case of a conflict of interest between the child and the child’s legal representative (e.g. a guardian ad litem) (Liefaard 2019).

Legislation should stipulate the availability of free of charge (or subsidised) and effective legal or other appropriate assistance for children (Liefaard 2019).

Legislative provisions for the legal empowerment of children could be introduced, such as (Human Rights Council 2013, para. 5):

• Access to legal and other services;
• Children’s rights education;
• Provision of counselling and advice;
• Support from (appropriate) adults.

Through legislation States Parties should also ensure that children have access to justice through non-judicial means. E.g.: Complaints mechanisms in detention centres, NHRIs and ICRIs (Liefaard 2019).

Legislative provisions for the establishment of child-sensitive procedures and child-friendly justice should be introduced, in particular (Liefaard 2019):

• Access to child-friendly information. Child-friendly information should be provided in a manner adapted to the child’s age, maturity, and specific circumstances.
• Effective child participation in proceedings, in line with article 12 CRC. The design of physical spaces, the clothing of actors present, the language used and the information provided to the child should all be carefully considered to ensure their participation is supported.
• As far as possible, specialised courts, procedures and institutions should be established for children, for example through the establishment of specialised units within the police, the judiciary, the court system and the prosecutor’s office (CoE Guidelines on child-friendly justice 2010, para. 63).
• Child-friendly outcomes and remedies. Decisions concerning remedies should have timely enforcement (CoE Guidelines on child-friendly justice 2010, para. 76). Remedies for children can take many different forms.

The Appeal’s Committee of the Dutch Council for the Administration of Criminal Justice and Child Protection found that the compensation must fit the nature and content of the challenged decision. Three elements should be taken into account: compensation should be of pedagogical significance; it should preferably be non-financial compensation; and it should meet the wishes of the child concerned (Appeals Committee, 19 November 2003, 03/1608/JA).

Under OPIC, the CRC Committee has developed both individual as well as general or systemic remedies for children (see further Liefaard 2023).