The role of the courts in protecting children's rights in the context of police questioning in Ireland and New Zealand
| Published date | 01 June 2022 |
| Author | Louise Forde |
| Date | 01 June 2022 |
| DOI | http://doi.org/10.1111/hojo.12472 |
Received: 8 April 2 021Accepted: 7 October 2021
DOI: 10.1111/ho jo.12472
ORIGINAL ARTICLE
The role of the courts in protecting children’s
rights in the context of police questioning
in Ireland and New Zealand
Louise Forde
Lecturer in Law,Brunel Law School,
Brunel University London
Correspondence
Louise Forde, Lecturer in Law,Brunel
Law School, Brunel University London.
Email: louise.forde@brunel.ac.uk
Funding information
Irish Research Council
Government of Ireland
Postgraduate Scholarship:
irce818caea5d4292dc92bbd752fd5f8ddc
Abstract
Ensuring safeguards are in place from the earliest stages
of criminal investigation is essential to ensure that
children’s rights in the youth justice system are ade-
quately protected. The rights of children in conflict
with the law are protected under the UN Convention
on the Rights of the Child (UNCRC), and in situa-
tions where these rights are breached, children must
have access to an effective remedy.National courts have
a role to play in ensuring that children’s rights are
protected and in providing necessary remedies. This
article explores the role the courts have played in
upholding children’s rights in the police questioning
process in Ireland and in New Zealand.
KEYWORDS
children’srights, courts, Ireland, New Zealand, police questioning,
youth justice
1 INTRODUCTION
Like adults, children suspected or accused of committing criminal offences are entitled to legal
safeguards in the course of the investigation process. Ensuring safeguards are in place from the
earliest stages of criminal investigation is essential to adequately protect and vindicate children’s
rights. The rights to which children in conflict with the law are entitled are protected under the
This is an open access article under the terms of the Creative Commons AttributionLicense, which permits use, distribution and reproduc-
tion in any medium, provided the original work is properly cited.
© 2022 The Authors. The HowardJournal of Crime and Justicepublished by Howard League and John Wiley & Sons Ltd
240 wileyonlinelibrary.com/journal/hojo HowardJ. Crim. Justice.2022;61:240–260.
THE HOWARDJOURNAL OF CRIME AND JUSTICE241
UN Convention on the Rights of the Child (UNCRC), and where these rights are breached, chil-
dren must have access to an effective remedy (UN Committee on the Rights of the Child, 2003).
National courts have a central role to play in ensuring that children’s rights are protected in prac-
tice and in providing remedies for any breaches; this is also a fundamental part of securing chil-
dren’s access to justice in a broader sense (Liefaard, 2019).
States parties to the UNCRC undertake a binding obligation in international law to imple-
ment its provisions effectively in national law (UN Committee on the Rights of the Child, 2003),
and while states have taken different approaches to achieving this (see Kilkelly, Lundy & Byrne,
2021), judges have a significant amount of power to activate and advance these legal rights in
circumstances where other authorities may have fallen short (Stalford & Hollingsworth, 2017).
The judiciary has a central role to play not only in making sure that children’s UNCRC rights are
‘respected’ in a basic manner in national law, but in ensuring that they are truly ‘realised’. This
implies that rights are going to be interpreted in a manner that is child-centred and cognisant of
the many issues specific to children who are trying to exercisetheir rights in the context of a police
interrogation.
National courts therefore have a central role to play in protecting and upholding children’s
rights principles. However, the extent to which this can be done is often dependent on a range of
other factors, including the approach taken to incorporation of the UNCRC at the domestic level,
the extent to which national statute law reflects international children’srights principles, and the
extent to which knowledge about issues specific to children that can arise in the police questioning
context have been disseminated among professionals. This article seeks to explore the role that
national courts have played in interpreting statutory safeguards and upholding children’s rights
in the police questioning process in two jurisdictions: Ireland and New Zealand.
Comparative research in youth justice can be a complex exercise, with many issues relating
to national context, history and culture impacting the evaluation of particular approaches and
policies in different contexts (see further, Field, 2019; Goldson, 2019;Nelken,2019); it is, nonethe-
less, a valuable tool for comparing the broad policy directions taken in different youth justice
systems as well as state responses to issues of concern (see, e.g., Cunneen, 2020; Goldson, 2019;
Goldson et al., 2021; Hamilton, Fitzgibbon & Carr, 2016; Leenknecht, Put & Veeckmans, 2020;
Muncie, 2011). While Ireland and New Zealand take different approaches to youth justice, there
are a number of similarities in the youth justice systems and wider penal culture that make a
comparison useful (Forde, 2021; see further Hamilton, 2013). The approach to youth justice in
both countries can be characterised as broadly progressive in outlook, with an increasing focus
on children’s rights being a particular characteristic of law and policy development in the two
countries in recent years (Forde, 2021). It is also significant that the New Zealand system of youth
justice provided inspiration for aspects of the Irish Children Act 2001 (Kilkelly, 2014; Lynch, 2012).
This article arises from a broader comparative study of the youth justice systems of
Ireland, New Zealand and Scotland. A comparison between the judicial approach taken in Ire-
land and New Zealand to the issue of children’s rights in police questioning is particularly con-
structive in teasing out the extent to which the children’srights principles under the UNCRC have
been reflected in the national courts, and the factors which have influenced this in each jurisdic-
tion. This article considers the applicable statutory frameworks in place in both Ireland and New
Zealand, and the legal challenges that have been brought before the domestic courts, and focuses
particularly on three issues of importance for children’s proceduralrights during the police ques-
tioning process: access to a lawyer; access to assistance from a parent, guardian or other adult;
and the way information is provided to children.
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