Scottish input in IBA Report on Children and Access to Justice

Andrew Mackenzie

The International Bar Association’s access to justice and legal committee, working with the Bingham Centre for the Rule of Law, has launched a draft report titled “Children and Access to Justice: National Practices, International Challenges.” The report was launched and the IBA annual conference in Washington.

The report seeks to examine the barriers and challenges to access to justice for children and the way those are overcome in different jurisdictions. It explores the position in different countries, but it does so with a view to understanding national issues as international challenges. In compiling the report, the Bingham Centre designed a survey which was distributed and responses analysed by the centre. There were 39 responses to the survey, coming from 22 jurisdictions.

Scotland was one of the most responsive jurisdictions, with four responses. The findings of the report are focused on the following main areas: legal framework and awareness of rights; legal standing and responsibility; legal responsibility for criminal acts; the justice system; and access to justice for children internationally.

The responses from Scotland feature heavily in the findings of the report. The report highlights that, in relation to the right to be heard, Scotland provides an example of few states who have set the voting age below 18. The report also highlights that Scotland, along with France, has organised a national consultation with 16,000 children (2,500 children in France’s case) and then advocated drawing inspiration from the children’s ideas.

Among discussion of ombudsmen offices for children, the report highlights the existence and function of the Children And Young People’s Commissioner Scotland, and how this works to protect the rights of children and young people. However, some reported that formal legal discrimination against asylum seeker and migrant children and children with disabilities was present in Scotland.

In relation to criminal responsibility, the report notes that Scotland has one of the lowest ages of criminal responsibility of all of the respondents (only Nigeria was lower, with an age of seven), although the report does note that the age of criminal prosecution is higher at age 12.

The committee on the rights of the child considers the age of 12 to be the minimum “internationally acceptable” standard, and recommends that states should not maintain in force ages of criminal responsibility below that threshold. The report notes that a report was published in 2007, following debate in the Scottish Parliament in 2004 and the commissioning of an independent review of institutional child abuse in residential and children’s homes between 1950 and 1995. The report also highlights the findings of this report.

In relation to the child’s right to be heard in civil and family cases, the Convention on the Rights of the Child provides that participation of children should be heard on a case by case basis, depending on age and maturity. However, the report found that a number of jurisdictions establish by law the minimum age at which the child is considered as a young person of sufficient maturity and capable of expressing views which should be considered.

A small number of jurisdictions had the threshold set at age seven, while Scotland, along with Belgium and Morocco, reported a higher age threshold of 12. However, respondents from Scotland also indicated that there is a cultural barrier to the active participation of children in these proceedings.

Attending the launch of the report, Andrew Mackenzie, communications officer for the access to justice and legal aid committee and chief executive of the Scottish Arbitration Centre, said: “The IBA Access to Justice and Legal Aid committee was only formed in 2013, yet it has already published case studies examples of best practice and four reports, working with the Bingham centre for the Rule of Law. The reports have been cited in a range of work internationally, including in OECD briefings on access to justice reforms, and the committee and Bingham centre researchers have presented findings on numerous occasions.

“The latest report on access to justice for children focuses is on access to a fair and equitable justice system that guarantees adequate protection of the rights of children, including comparative consideration of whether certain groups of children in different countries are differently or particularly affected in these respects. I am particularly delighted that Scotland features so prominently this year and hope this will continue in our future surveys.”