Realising the Right of the Child to Participate in the Criminal Process

AuthorLouise Forde
Published date01 December 2018
Date01 December 2018
Youth Justice
2018, Vol. 18(3) 265 –284
© The Author(s) 2018
Article reuse guidelines:
DOI: 10.1177/1473225418819086
Realising the Right of the Child to
Participate in the Criminal Process
Louise Forde
The right of the child defendant to participate effectively in criminal proceedings is a fundamental aspect of
the right to a fair trial, and is guaranteed under a number of international instruments, including the United
Nations Convention on the Rights of the Child. Ensuring that the right is realised at the domestic level
requires States to take positive steps to facilitate the child’s effective participation. This article examines
how the child’s participation is supported through statutory provisions and by the courts in Ireland and New
Zealand. The discussion highlights challenges and positive steps taken to facilitate effective participation in
domestic law.
children’s rights, effective participation, investigation, Ireland, New Zealand, youth courts
Ensuring that children in conflict with the law can participate meaningfully in criminal
proceedings is an integral part of ensuring that a State’s youth justice system is child-
friendly and rights-compliant. Children in conflict with the law, like adults, enjoy the
protection of the right to a fair trial as a fundamental right. This guarantee is codified in a
number of international instruments and ensuring that children are able to participate
effectively is a key aspect of this (Arthur, 2016: 223). Children in conflict with the law
require additional supports in order to ensure that their right to participate is meaningful
in practice (Rap, 2016: 99), and therefore vindicating this right poses real challenges at
the national level for States.
There is a need for States to take positive steps in order to support young people’s par-
ticipation. This can be achieved by legislation that provides strong entitlements to infor-
mation and other support mechanisms, as well as through the modification of procedures
by courts and professionals involved in the criminal justice system. The aim of this article
is to examine the efforts that have been made to facilitate the participation of children in
Corresponding author:
Louise Forde, School of Law, Aras na Laoi, University College Cork, Cork T12 T656, Ireland.
819086YJJ0010.1177/1473225418819086Youth JusticeForde
Original Article
266 Youth Justice 18(3)
conflict with the law in criminal processes in the Republic of Ireland and to compare this
with the steps taken in New Zealand.
A comparison of practice in Ireland and New Zealand provides a useful insight into the
challenges that emerge in practice in the implementation of law and policy that aims to
uphold children’s rights in the trial process. While there are similarities in specific legisla-
tive provisions in the New Zealand and Irish youth justice legislation – indeed, the New
Zealand system of youth justice provided significant inspiration for the Irish legislature at
the introduction of the Children Act 2001 (Dail Eireann Debates, 2000) – the differences
in the legal frameworks, in the role of the courts, and in the procedures followed, impact
the rights of children in conflict with the law in different ways. It is worth noting that
youth justice law in both countries is also in a period of transition. Significant changes
have recently been introduced to the Oranga Tamariki Act 1989 (formerly known as the
Children, Young Persons and Their Families Act 1989) and are in the process of being
rolled out, though many of the legislative changes remain uncommenced at the time of
writing. Similarly, in Ireland, the Children Act 2001 is entering a period of review and
reconsideration. Through an examination of the relevant legislative frameworks, guide-
lines and practice in each of these countries, the discussion aims to highlight some of the
challenges that arise for countries seeking to realise the child’s right to effective participa-
tion, as well as the features of the systems that can help to support children in this context.
These are relevant not only to the two countries discussed but to all States seeking to adapt
their legislation and legal systems in order to meet their obligations under the United
Nations Convention on the Rights of the Child (UNCRC) and other international
This article will first discuss the relevant international standards and guidelines that set
out the rights children are entitled to in criminal processes. It then moves on to consider
how these standards are realised at the domestic level. In particular, it focuses on how the
legislative framework and the way in which provisions are implemented impact the child’s
right to participate at two key stages: (1) at the pre-trial and investigation stage and (2)
during the trial process.
International Standards and Guidelines
International standards at both the United Nations (UN) and European level guarantee the
child’s right to participate in criminal proceedings. The rights of children in conflict with
the law are set out in Articles 37 and 40 of the UNCRC. Furthermore, Article 12 of the
UNCRC recognises that all children capable of forming his or her own views should have
the opportunity to express them freely in any proceedings affecting him or her, and that
due regard should be given to these views, in line with their age and maturity. It has been
noted that the obligation for States to implement this right fully is a strict one (Parkes
et al., 2015: 442). Article 40 of the UNCRC details the due process rights which children
are entitled to. These guarantees are applicable to children ‘alleged as, accused of, or rec-
ognised as having infringing the penal law’ and therefore apply from the earliest stages of
children’s contact with criminal justice authorities. Article 40.2 provides a number of
specific protections to the child in conflict with the law, which include a right to be

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