access to justice for children with mental roject ummary eportphoto: © unicef/nyhq2011-1060/holtaccess to justice for children with mental roject ummary eport2015isbn 978-615-80236-6-5copyright statement:© mental disability advocacy center (mdac), 2015. all rights reserved.this publication has been produced with the őnancial support of the fundamental rights and citizenship programme of the european union. the contents of this publication are the sole responsibility of the mental disability advocacy center and can in no way be taken to reűect the views of the european commission.april 2015contents1.introduction and overview…………………………………………………………………………………………………………………………………………………………………………………………..project overview…………………………………………………………………………………………………………………………………………………………………………………tools for policy-makers and researchers…………………………………………………………………………………………………………………………………………..the european dimension…………………………………………………………………………………………………………………………………………………………………..human rights indicators and data collectionstandards for collecting and disseminating data……………………………………………………………………………………………………………………………human rights indicator systems………………………………………………………………………………………………………………………………………………………….information systems for collection of disaggregated data……………………………………………………………………………………………………………..recommendations…………………………………………………………………………………………………………………………………………………………………………… standards and őndings in ten european countriescontext……………………………………………………………………………………………………………………………………………………………………………………………..international standards…………………………………………………………………………………………………………………………………………………………………….domestic research……………………………………………………………………………………………………………………………………………………………………………phase one: desk-based research………………………………………………………………………………………………………………………………………………phase two: facilitated desk-based research……………………………………………………………………………………………………………………………..phase three: empirical research………………………………………………………………………………………………………………………………………………..proposed indicators on access to justice for children with mental disabilities………………………………………………………………………………..cluster one: monitoring and complaints – structural indicatorscluster two: participation in justice processes – process indicatorscluster three: facilitating access to justice – process indicatorstraining of professionals in the justice systemcore concepts and skillsdelivery of training, syllabus and bibliography……………………………………………………………………………………………………………………………….1.introduction and overviewthis summary report provides an overview of a two-year project on access to justice for children with mental disabilities in ten member states of the european union (eu). the project was designed to address an important gap in research and evidence to inform policy at the national and european levels, directly drawing from international human rights standards. the research project was multidisciplinary and took place in bulgaria, czech republic, ireland, hungary, latvia, lithuania, slovenia, spain, romania and the united kingdom. “access to justice” is an evolving concept in international law and refers to the right of “effective access to systems, procedures, information and locations used in the administration of justice.” flowing from article 8 of the universal declaration effective remedy for violations of fundamental rights.“children with mental disabilities” has been used throughout this project to refer to children with intellectual, developmental, cognitive and/or psycho-social disabilities. children with intellectual disabilities generally have greater difőculty than other children with their intellectual and adaptive functioning and development due to a long-term condition that arises at birth or during childhood. developmental disability includes intellectual disability, as well as children with other developmental challenges including cerebral palsy, autism spectrum disorder and fetal alcohol spectrum disorder. cognitive disability refers to difőculties with learning and processing information. children with psycho-social disabilities are those who experience mental health issues.project overviewthe central of the project was to provide an evidence and information base to strengthen the right for children with mental disabilities to access remedies and redress for violations of their fundamental human rights through judicial and semi-judicial processes at the national level. the project had four coreobjectivesdevelopment of a methodology for gathering data on access to justice for children with mental disabilities across the eu;development of standards for access to justice for children with mental disabilities űowing from international law, including in relation to protection of the privacy of children in legal processes, child participation, accessible information, access to legal assistance and representation, and the provision of reasonable accommodations;development of training and educational materials for practitioners concerned with the administration of justice and who come into contact with children with mental disabilities, namely judges, police ofőcers, social workers, psychologists, etc.; andadvocacy and dissemination activities to share the outcomes of this project with relevant policy-makers in member states.janet e. lord et al., human rights yes! action and advocacy on the rights of persons with disabilities edition, (minneapolis: university of minnesota human rights center, 2012).tools for policy-makers and researchersthe project was co-őnanced by the european union and has enabled project partners to produce a comprehensive set of research tools, őndings and recommendations. this report provides a summary of the project outputs, the majority of which have been translated into all project languages and are available on the project website: www.mdac.org/accessing-justice-childrenprofessor anna lawson, access to justice for children with data: guidance report (mdac and university of leeds, january 2015) – available in all project languages.professor anna lawson, access to justice for children with (mdac and university of leeds, april 2015) – available in english only.access to justice for children with mental disabilities: international standards and findings from ten eu member states (mdac, april 2015) – available in all project languages.a set of online education and training materials for judges, lawyers, police, social workers and other professionals involved in the administration of justice – available in all project languages.factsheets on key barriers to accessing justice for children with mental disabilities in each of the project countries – available in english and each respective project the european dimensionthe rights of children in justice systems have gained increasing importance at the european level in recent years. one of the most signiőcant developments was the development of guidance by the council of europe on child-friendly justice which provides practical information to policy makers and others involved in the administration of justice in protecting children‘s rights in legal proceedings, and makes speciőc reference to binding international human rights law. many of the principles and standards apply directly to children with mental disabilities, but there is clearly a need for more targeted information about the provision of accommodations, adjustments and supports that may be required for children with intellectual or psycho-social impairments. to date there have only been limited attempts to address the rights of these children, and low awareness of the speciőc barriers they are likely to face to participation in justice processes.unlike the council of europe, the european union (eu) ‘conőrmed‘ the united nations convention on the rights of persons with disabilities (un crpd) in its own right in 2010, thereby undertaking speciőc obligations under international law to promote the rights of persons with disabilities, including children. shortly after this, the european commission adopted an eu agenda for the rights of the child.‘child-friendly justice‘, the agenda noted the crucial role of the eu in facilitating action to improve outcomes for all children who come into contact with national justice systems:“making the justice system more child-friendly in europe is a key action item under the eu agenda for the rights of the child. it is an area of high practical relevance where the eu has, under the treaties, competences to turn the rights of the child into reality by means of eu legislation.”a number of related developments have also taken place, including the adoption of the stockholm programme to strengthen freedom, security and justice across the union.although this places a focus on strengthening the rights of the child, it was noticeable that there was no speciőc mention of the rights of children with disabilities.“guidelines of the committee of ministers of the council of europe on child-friendly justice”, adopted by the committee of ministers on 17 november 2010 at the 1098 meeting of the ministers‘ deputies, available online at www.coe.int/childjustice (last accessed: 20 april 2015).council decision of 26 november 2009 concerning the conclusion, by the european community, of the united nations convention on the rights of persons with disabilities, oj l 23, 27/1/2010, p. 35-61.communication from the commission to the european parliament, the council, the european economic and social committee and the committee of the regions, eu agenda for the rights of the child, com/2011/0060 őnal.., section 2.1.european council, the stockholm programme – an open and secure europe serving and protecting citizens, 4/5/2010, c 115/1.despite this omission, a number of other initiatives have been undertaken with a view to improving respect for the rights of children in justice processes, particularly in the őeld of criminal justice. in respect of suspects viewed to be ‘vulnerable‘, a 2013 recommendation of the european commission called on member states to prevent discrimination against persons with disabilities in the exercise of their procedural rights, to include a “presumption of vulnerability” for people with “persons with serious psychological, intellectual, physical or sensory impairments, or mental illness or cognitive disorders”, along with guaranteeing rights to access information, legal assistance, and where a person was at risk of being deprived of their liberty.other relevant measures taken include the adoption of the victims directive, which states that:“particular account should be taken of difőculties in understanding or communicating which may be due to a disability of some kind, such as hearing or speech impediments. equally, limitations on a victim‘s ability to communicate information should be taken into account during criminal proceedings.”in 2013, a further directive was passed on the right of access to a lawyer in criminal proceedings. the directive makes reference to the council of europe‘s guidelines on child-friendly justice, but only makes a single reference to persons in terms of research, it is to be welcomed that increased efforts have been undertaken to improve the quality and availability of information and data relating to the rights of the child, including a soon-to-be published study on violence against children with disabilities led by the eu agency for fundamental rights,and a major study to collect data on children in all judicial proceedings in the eu‘s 28 member states. the őrst stage of the latter project has resulted, for the őrst time, in the collection of extensive information in relation to children in criminal justice based on a list of 290 indicators. the focus on collection and dissemination of data is also to be welcomed, although it is notable that the study has not yet collected disaggregated data in relation to the experiences of children with various impairments.it is hoped that the outcomes of the present project will provide further information for policy makers at the european union and the council of europe to build a more thorough understanding of the multiple and systemic barriers to accessing justice faced by children with mental disabilities in europe. in turn, we hope it promotes sustained, european-level action to undertake further targeted research which shines a light on their experiences, and contributes to the push for governments to implement their obligations under international law. ultimately, it is our desire to see signiőcantly improved outcomes for children in all spheres of justice, civil, criminal and administrative.commission recommendation of 27 november 2013 on the procedural safeguards for vulnerable persons suspected or accused in criminal proceedings, oj c 378, 12/2/2013, p. 8-10. it has been noted, however, that the concept of ‘vulnerability‘ in setting out rights for persons with disability doesn‘t sit well with a human rights-based approach under the crpd.directive 2012/29/eu of the european parliament and of the council of 25 october 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing council framework decision 2001/220/jha, oj l 315, 14/11/2012, p. 57-73, at para. 21.directive 2013/48/eu of the european parliament and of the council of 22 october 2013 on the right of access to a lawyer in criminal proceedings and in european arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with a third person and with consular authorities while deprived of liberty, oj l 294, 6/11/2013, p. 1-12.10further information available online at http://fra.europa.eu/en/video/2014/violence-against-children-disabilities (last accessed: 20 april 2015).11see the dedicated website at http://www.childreninjudicialproceedings.eu/home/default.aspx (last accessed: 20 april 2015).8 human rights indicators and data collectioneffective systems for monitoring the extent to which change is occurring play a crucial role in the implementation of human rights commitments made by governments. the eu agenda on the rights of the child identiőed the lack of reliable data on the situation of children in member states as a key barrier to the development of evidence-based policy. the situation is more critical for children with mental disabilities on which there is very little information available, particularly regarding their rights to access remedies and redress for violations of their fundamental responding to this concern, we sought to address four related themes during the project:synthesising relevant international standards relating to the collection of data for the purpose of monitoring the access to justice rights of children with mental disabilities;applying the international standards to analyse current guidance to policy-makers to facilitate effective monitoring, in particular assessing the extent to which current european indicator systems reűected include the experiences of these groups of children;the requirement to develop information systems able to collect relevant, disaggregated data at the national level which sufőciently capture the experiences of children with mental disabilities in civil, criminal and administrative proceedings; andfacilitating and undertaking further targeted research in this area by providing detailed guidance on such endeavours.a summary of the őndings of this part of the project are set out in a full report which is available in all project languages on the project website: www.mdac.org/accessing-justice-childrenstandards for collecting and disseminating dataarticle 31 of the crpd, which has been ratiőed by all project countries (bar ireland), and has been conőrmed by the eu, requires that states must “collect appropriate information, including statistical research and data, to enable them to formulate and implement policies” which give effect to the rights of persons with disabilities. in the őeld of children‘s rights, the un committee on the rights of the child (crc) has also called on states to “systematically collect disaggregated data relevant to the information on the practice of the administration of juvenile justice, and necessary for the development, implementation and evaluation of policies and programmes”.as part of broader obligations on governments to collect data on the implementation of the rights of the child under periodic reporting procedures to the un treaty bodies, the un general assembly has called on states to “incorporate detailed and accurate information relating to access to justice for children, including on progress made and challenges encountered and statistical and comparable data”.the council of europe (coe) has also placed some attention on the need to collect relevant data, particularly under the guidelines on child-friendly justice. in recognition of the barriers faced by persons with disabilities, the coe has sought to “encourage and advance comprehensive, diversiőed and specialised research on all disability issues”.human rights indicator systemsour research identiőed a number of relevant projects which had developed indicators relevant to the access to justice rights of children with mental disabilities in europe, including:12european commission, communication from the commission to the european parliament, the council, the european economic and social committee and the committee of the regions: an eu agenda for the rights of the child, 15 february 2011, com(2011)60 őnal. 13professor anna lawson, access to justice for children with mental disabilities. the collection and dissemination of data: guidance report (mdac and university of leeds, january 2015).14committee on the rights of the child, general comment no. 10: children‘s rights in juvenile justice, 25 april 2007, crc/c/gc/10, para. 98.15united nations, general assembly, human rights council, resolution no. 25/6: rights of the child: access to justice for children, 25 march 2014, una/hrc/25/l.10.supra17recommendation rec(2006)5 of the committee of ministers to member states on the council of europe action plan to promote the rights and full participation of people with disabilities in society: improving the quality of life of people with disabilities in europe 2006-2015, available online at http://www.coe.int/t/e/social_cohesion/soc-sp/rec_2006_5%20disability%20action%20plan.pdf (last accessed: 20 april 2015), part 3.14.1.the disability online tool of the commission (dotcom),providing information on laws and policies relating to persons with disabilities, and a tool to inform the european disability strategy 2010-2020;the eu agency for fundamental rights‘ (fra) indicators for the protection, respect and promotion of the rights of the child in the european union, which covers four core areas of rights including family environment and alternative care; protection from exploitation and violence; adequate standard of living; and education, citizenship and participation in school and sports;a european commission funded study to collect data on children‘s involvement in criminal, civil and administrative judicial proceedings;an indicator framework on juvenile justice developed by unicef and the un ofőce on drugs and crime;the council of europe‘s assessment tool on child participation.the indicator systems had a number of limitations which rendered the particular experiences of children with mental disabilities in justice systems invisible, or provided only partial information in speciőc domains. for example, the dotcom tool did not speciőcally address access to justice as a theme, and while the fra indicators placed a welcome emphasis on the need for disaggregated data, particularly regarding disability in the őeld of justice, the system was not comprehensive in a way that would capture barriers to justice faced by children with mental disabilities. the ec study on children‘s involvement in legal proceedings brought together vast amounts of data from all eu member states but unfortunately contained little disaggregation on the basis of disability.information systems for collection of disaggregated data“in order to fulől their obligations, it is necessary for states parties to set up and develop mechanisms for collecting data which are accurate, standardized and allow disaggregation, and which reűection the actual situation of children with disabilities. the importance of this issue is often overlooked and not viewed as a priority despite the fact that it has an impact not only on the measures that need to be taken in terms of prevention but also on the distribution of very valuable resources needed to fund programmes.”the study went on to assess the design of information systems in order to harness data on the individual experiences of children with mental disabilities in justice systems. it looked at two related issues. the őrst is the way in which details of a child‘s disability or impairment-type could be collected by justice systems, and the second was the recording of support or adjustments made to judicial proceedings. these two types of information are viewed as crucial to inform the analysis and reform of justice processes to fully accommodate and ensure access to justice for children with mental disabilities.there are a number of challenges in developing such information systems. reliance on overly broad categories of disability is unlikely to provide information on the speciőc barriers faced by, for example, children with multiple disabilities. in the alternative, collection of őne-grain detail on a wide range of impairment types is likely to become unworkable or rely overly on medicalised notions of disability, rather than adopting the social model of disability recognised by the un convention on the rights of persons with disabilities (crpd). a further complexity arises relating to stigma connected with labelling children as having particularly forms of impairments, such as in relation to children who experience mental health issues.such systems must always be guided by the best interests of the child, set out in article 3(1) of the un convention on the rights of the child (crc) and article 7 of the crpd. guidance from the un committee on the rights of persons with disabilities (crpd committee) suggests that “physical, sensory, intellectual and mental” impairment-types could be broad categories of disaggregation, yet deőnitional challenges relate to these categories and require further consideration.18available online at http://www.disability-europe.net/dotcom (last accessed: 20 april 2015).19available online at http://fra.europa.eu/en/publication/2012/developing-indicators-protection-respect-and-promotion-rights-child-european-union (last accessed 20 april 2015).available online at http://www.childreninjudicialproceedings.eu/home/default.aspx (last accessed: 20 april 2015).21available online at http://www.unodc.org/pdf/criminal_justice/manual_for_the_measurement_of_juvenile_justice_indicators.pdf (last accessed: 20 april 2015).council of europe children‘s rights division and youth department, child participation assessment tool: indicators for measuring progress in promoting the rights of children and young people under the age of 18 to participate in matters of concern to them, available online at http://coe.int/t/dg3/children/participation/newdefault_en.asp (last accessed: 20 april 2015).committee on the rights of the child, general comment no. 9 (2006): the rights of children with disabilities, 27 february 2007, crc/c/gc/9, para. 19.human rights standards concerning recordkeeping within justice systems exist, particularly under the un havana rules regarding children in detention. whilst comprehensive information is required to be collected regarding the identity, reasons for detention, notiőcation of parents and details of physical or mental health issues, it is notable that supports and reasonable accommodations are absent, and are therefore less likely to be monitored by governments.research from this project found no examples of initiatives to develop comprehensive systems for collecting and sharing information about supports and reasonable accommodations for children with mental disabilities between justice professionals. one promising development identiőed was a draft “accessible information standard” from the national health service in england, which speciőes that needs and adjustments for individual service users should be recorded.recommendationsa full set of recommendations can be found in the report, and placing a greater emphasis on the collection of data in respect of access to justice for persons with disabilities;introduction of systems for the collection and publication of disaggregated data on the basis of age and impairment-type at all stages of the justice system;collection of systematic data on the nature of adjustments and supports required by individual children, in accordance with the best interests of the child;mainstreaming these approaches at the level of the european commission;guidance drawn up by the european commission and national governments articulating the requirement that assessments of children with mental disabilities should be focused on the provision of disability-related adjustments which enable their participation in judicial proceedings on an equal basis with others.creation of tools and systems to share only relevant information related to disability-based adjustments and supports needed by children in judicial proceedings with key professionals who interact with them and on a multi-disciplinary basis; andundertaking further research and developing outcome indicators to assess the access to justice rights of children with mental disabilities in national justice systems.24united nations, general assembly, resolution no. 45/113: united national rules for the protection of juveniles deprived of their liberty, 14 december 1990, a/res/45/113.for further information, see http://www.england.nhs.uk/accessibleinfo (last accessed: 20 april 2015).11
