Observing Juvenile Courtrooms: Testing the Implementation of Guidelines on Child-Friendly Justice in Spain

Date01 August 2021
DOI10.1177/1473225420918027
Published date01 August 2021
https://doi.org/10.1177/1473225420918027
Youth Justice
2021, Vol. 21(2) 192 –209
© The Author(s) 2020
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DOI: 10.1177/1473225420918027
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Observing Juvenile Courtrooms:
Testing the Implementation
of Guidelines on Child-Friendly
Justice in Spain
Esther Fernández-Molina, María Bermejo
and Olalla Baz
Abstract
In 2010, the Council of Europe adopted Guidelines on child-friendly Justice. This means, inter alia, developing
an accessible justice system and focusing on respecting children’s rights to participate in and to understand
proceedings. This research was conducted to establish the implementation of child-friendly justice through
129 observations in the courtrooms of two Spanish juvenile courts. The findings show that attempts have
been made to comply with European standards, especially by judges who have implemented the required
adaptations and encouraged the participation of children. However, the infrastructure does not appear to
be the most appropriate, and questionable practices have been identified.
Keywords
child-friendly justice, children rights, courtroom, participation, youth justice
Introduction
The Council of Europe (COE) has created new standards aimed at improving the justice
system and adapting it to the specific needs of children. These standards are contained in
the Guidelines of the Committee of Ministers of the Council of Europe on child-friendly
justice (2010). These Guidelines are a soft law instrument built on binding international
law, including the Convention on the Rights of the Child (hereinafter CRC) and the case
law of the European Court of Human rights (Liefaard and Kilkelly, 2018) which has
helped to provide a basis for rethinking juvenile justice (Goldson and Muncie, 2012).
By child-friendly justice, the COE refers to justice that is accessible, age appropriate,
speedy, diligent, adapted to and focused on the needs and rights of the child, respecting the
rights of the child including the rights to due process, to participate in and to understand
Corresponding author:
Esther Fernández-Molina, Criminology Research Centre, Universidad de Castilla-La Mancha, Campus Universitario s/n,
02071 Albacete, Spain.
Email: esther.fdez@uclm.es
918027YJJ0010.1177/1473225420918027Youth JusticeFernández-Molina et al.
research-article2020
Original Article
Fernández-Molina et al. 193
the proceedings, respecting the right to private and family life and the right to integrity and
dignity. These guidelines promote and protect, among other things, children’s rights to
information, representation and participation in judicial proceedings. They also give a
place and a voice to the child at all stages of the justice system procedures. The guidelines
build on five fundamental principles: participation, the best interest of the child, dignity,
absence of discrimination and rule of law, as well as detailed principles applicable before,
during and after proceedings.
The aim of this article is to assess the implementation in the Spanish juvenile justice sys-
tem1 of the new standards proposed by the COE in their Guidelines on child-friendly justice.
Despite the weak legal status of the Guidelines, as Liefaard and Kilkelly (2018: 66) point out
we should take them seriously, they build on specific provisions in the CRC (refreshing
recently by the United Nations (UN) Committee of the Rights of the Child in General
Comment No. 24 on children’s rights in the child justice system),2 the case of law of the
European Court and the new European union legislation, Directive 800/2016/UE, on proce-
dural safeguards for children who are suspects or accused persons in criminal proceedings.
In particular, we assess the adherence to this new approach during judicial criminal
proceedings, especially, during the trial in the courtroom. First, we show how these guide-
lines are implemented in trials.
Participation
The European Court has recognised the right to effective participation as part of the child’s
right to a fair trial (Kilkelly, 2015). Children have the right to be heard and express views
in decisions that affect them, and adults must take children’s views seriously. However, it
should be explained to children that their right to be heard and to have their views taken
into consideration may not necessarily determine the final decision. According to the
guidelines, they should be clearly informed that if a judge does hear them, this does not
mean they will ‘win’ the case. In order to gain or obtain the trust and respect for the given
judgement, effort should be made by the child’s lawyer to explain why the child’s opinion
has not been followed or why the given decision has been made, as is done for adults
(paragraph 111). Moreover, children should be consulted on the manner in which they
wish to be heard. In this sense, it is important to remember that the right to speak up is a
right and not a duty, with there being no obligation for a child to participate (Vandekerckhove
and O’Brien, 2013: 529).
Access to court
As Vandekerckhove and O’Brien (2013: 536) point out, the guidelines on access to court
are probably the most innovative and debated of all the Child Friendly Justice Guidelines.
If children are subjects with rights, the justice system should allow them to make use of
their rights whenever necessary. Thus, access to court for children involves their under-
standing of these rights and the adapted proceedings and settings.
Information. From their first involvement with the justice system and throughout that pro-
cess, children and their parents should be promptly and adequately informed of their rights

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