FRA Opinions Minimum age justice

The FRA opinions presented below build on the following key findings:

Age thresholds for the right of children to express their views and be heard during judicial proceedings vary remarkably among EU Member States, but also within Member States across different areas of regulation (e.g. in the context of family, criminal, and asylum and immigration law).
The majority of EU Member States set at 18 the age limit for children in criminal proceedings to be entitled to special support and procedural safeguards, such as audio-visual recording, interviewing by specialist personnel or hearings in absence of the public – irrespective of whether they are victims, witnesses or suspects/offenders.
A few Member States set the upper age limit for children to be entitled to special support and procedural safeguards at lower than 18. Findings from FRA’s studies on child-friendly justice (2015 and 2017)8 show that, in these Member States, children tend to be treated as adults once they are older than the age limit set for being entitled to procedural safeguards.
In line with the Directive on special safeguards for children, all EU Member States provide for legal aid for child suspects/offenders without setting an explicit minimum age requirement. In the majority of Member States (17), though, legal aid is provided only if income requirements are met.
In 21 EU Member States, children under 18 involved in criminal proceedings as suspects/offenders are not permitted to waive their right to a lawyer. Child victims under 18 are restricted from waiving their right to a lawyer in 11 Member States.
Child offenders can be subject to custodial sanctions and measures (detention) in all EU Member States. As a general trend, the minimum age threshold for such sanctions and measures is the same as the minimum age for criminal responsibility. The applicable minimum age ranges from 10 to 16.
Child detainees cannot be placed in solitary confinement in only four EU Member States.

Findings regarding the recognition and respect of children’s rights in the area of justice, available on FRA’s website, show asymmetry in approaches to child participation in judicial proceedings among Member States, but also within Member States across various areas of regulation (i.e. criminal, civil or administrative law proceedings). This results from differing minimum age requirements regarding the right of children to express their views on their own and be heard in proceedings, if they are able and wish to do so. Child participation in the area of justice encompasses the right of children to be informed about proceedings affecting their lives and their right to be heard according to their age and maturity, as enshrined in Article 24 (1) of the EU Charter of Fundamental Rights and Article 12 of the UN Convention on the Rights of the Child (CRC). As acknowledged in the Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice, the respect of this right serves the best interests of the child, a principle that is to be a primary consideration for all national authorities, including courts and legislative bodies.

FRA Opinion 1

The EU, its Member States and competent national authorities should seek to promote child participation in judicial proceedings, thereby fulfilling the fundamental principle of the best interests of the child, when taking decisions on minimum age requirements in the area of justice or when applying relevant EU and national legislation. Such decisions, and the implementation of relevant legislation, should respect children’s right to be informed, express their views on their own, and be heard in every judicial proceeding affecting their lives in a child-friendly manner with the appropriate procedural safeguards in place, whether it is a criminal, civil or administrative law proceeding.

A number of EU Member States do not apply strict minimum age requirements for children to have the opportunity to express their views and to be heard in any kind of criminal, civil or administrative law proceeding. Many Member States, however, do apply such minimum age requirements, without considering that, in light of Article 12 of the CRC and Article 24 (1) of the Charter, not only children’s age but also their maturity should be taken into account in view of implementing the right of children to be heard in proceedings. In this respect, several EU legislative measures provide for the need to take into account children’s views, needs and concerns in judicial proceedings. These include the Directive on special safeguards for children (Article 16); the Victims’ Rights Directive (Article 10); the Directive combating the sexual abuse and sexual exploitation of children and child pornography9 (Article 19); the Directive on preventing and combating trafficking in human beings and protecting its victims (Anti-Trafficking Directive)10 (Article 14); and Regulation Brussels II bis, as regards, for instance, judgments on parental responsibility (Article 23). To determine whether a child is capable of expressing its views on its own during a judicial proceeding, an individual assessment of the child, taking into account not only the child’s age but also other personal characteristics, should be a suitable and useful tool.

FRA Opinion 2

EU Member States should consider revising any strict minimum age requirement for children to have the opportunity to express their views on their own and be heard in all judicial proceedings affecting their lives. Instead, whether children can exercise their right to be heard on their own should depend on an individual assessment that takes into account not just the child’s age but also the child’s personal characteristics. These characteristics include the child’s maturity level and gender; legal, psychological, social, emotional, physical and cognitive situation and needs; as well as the nature of the case and proceeding (e.g. cases of sexual abuses). Such assessments should be carried out with the participation of specialised personnel and in child-friendly and gender-sensitive settings. The assessments should identify the appropriate specific protective measures to be applied for a child to be heard in a certain judicial proceeding – allowing, for example, for the child to express its views not during court sessions but through video recordings that can be used as evidence.

Most EU Member States provide, up to the age of 18, special support and procedural safeguards for children in criminal proceedings, regardless of whether they are involved in these as suspects/offenders, victims or witnesses. Such safeguards include audio-visual recording, forensic interviewing by specialist personnel, the closed-door rule, and psychosocial support. Some Member States also provide stronger protective measures for younger children in criminal proceedings (depending on the context, this can mean, for instance, children under 15, 14 or 12). However, a few Member States set the upper age limit for support and minimum procedural safeguards below 18; or set different age limits depending on the child’s role in a proceeding. In this respect, the Directive on special safeguards for children, as well as the Victims’ Rights Directive, establish minimum standards for all children under 18 who are suspects/offenders or victims as regards their support and procedural safeguards. Age and maturity, though, as well as a child’s gender, may call for further appropriate and more targeted protective measures, which can be better defined after an individual assessment of a child’s needs.

FRA Opinion 3

EU Member States should provide appropriate, targeted and gender-sensitive support and procedural safeguards to children of all ages in criminal proceedings, regardless of whether they are involved in such proceedings as suspects/ offenders, victims or witnesses. Such support and procedural safeguards should be provided following an individual assessment of a child’s needs, as also laid down in Article 7 of the Directive on special safeguards for children and Article 22 of the Victims’ Rights Directive.

FRA Opinion 4

Member States should raise to 18 the age limit for benefitting from appropriate support and procedural safeguards. Member States should also consider applying stronger procedural safeguards for younger children in judicial proceedings, as for instance for children under 12.

FRA evidence shows that, in all EU Member States, free legal aid is provided to all child suspects/offenders and is not subject to any age requirements. Similarly, it is also provided to victims, and not subject to any age requirements, in the vast majority of Member States. The majority of EU Member States, however, do not provide legal aid to child witnesses. Moreover, in the majority of Member States, free legal aid is conditioned on income requirements, regardless of whether the child’s role in a criminal proceeding is as suspect/ offender, victim or witness. As regards children and the relevant EU secondary legislation, their right to legal aid is explicitly laid down in Article 18 of the Directive on special safeguards for children. It obliges EU Member States to ensure that national law guarantees the effective exercise of a child’s right to be assisted by a lawyer in criminal proceedings. In the context of this directive, the term ‘child’ refers to persons under 18; consequently, Member States are not allowed to introduce age limits below the age of 18. Furthermore, the right to legal aid, without distinguishing on the ground of age, is also foreseen in Article 13 of the Victims’ Rights Directive regarding all victims, as well as in Article 15 (2) of the Anti-Trafficking Directive and Article 20 (2) of the Directive combating the sexual abuse and sexual exploitation of children and child pornography.

FRA Opinion 5

EU Member States should examine the possibility of providing legal aid unconditionally to all children, independent of their age, and of their role as suspects/offenders, victims or witnesses in the judicial proceedings. Legal aid should include free access to advice for child witnesses and legal representation for child victims or suspects/ offenders throughout the proceedings. The use of specialised children’s lawyers should be promoted.

In most EU Member States, children under 18 involved in criminal proceedings as suspects/offenders cannot waive their right to a lawyer. The Directive on special safeguards for children does not explicitly exclude children from waiving this right. However, Article 6 (2) of the directive provides for Member States to ensure that child suspects/offenders shall be assisted by a lawyer. Article 6 (6) specifies that the Member States shall ensure that “deprivation of liberty is not imposed as a criminal sentence, unless the child has been assisted by a lawyer in such a way as to allow the child to exercise the rights of the defence effectively and, in any event, during the trial hearings before a court”.

FRA Opinion 6

EU Member States should consider adopting a more protective approach for children, limiting their ability to waive their right to a lawyer before they turn 18. For instance, they should ensure that competent authorities provide clear information and guidelines to children of all ages who are suspects/offenders in criminal proceedings regarding their right to be assisted by a lawyer. Particularly for children during court hearings, it should not be possible to waive this right. In any event, children should only be able to waive their right to a lawyer if they have been thoroughly informed and are aware of the procedures, their rights and the consequences of not being represented by a lawyer.

Child offenders can be subject to custodial sanctions and measures, and be deprived of their liberty (i.e., detained) in all EU Member States. The minimum age for being subject to such sanctions and measures corresponds to the minimum age for criminal responsibility. Under Article 10 (2) of the Directive on special safeguards for children, deprivation of liberty is foreseen as a measure of last resort for child offenders. Article 11 of the directive calls on Member States to ensure that, where possible, the competent authorities apply alternatives to detention (alternative measures). In addition, Article 7 of the directive provides that an individual assessment should take place before a sanction is decided, considering, among other factors, the child’s maturity and age. Deprivation of liberty for children as a measure of last resort is also a principle enshrined in Article 37 (b) of the CRC and other UN soft law instruments, such as the UN Rules for the Protection of Juveniles Deprived of their Liberty. The principle is also endorsed by the Council of Europe in its Recommendation on the European Rules for juvenile offenders subject to sanctions or measures and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT).

FRA Opinion 7

To ensure that child offenders are deprived of their liberty only as a measure of last resort, EU Member States should develop alternative measures to detention. These could encompass a prohibition on the child staying in certain places, the obligation to reside in a specific place, restrictions concerning contact with certain persons, reporting obligations to the competent authorities or mandatory participation in educational programmes. Before imposing a sanction on a child offender, national authorities should ensure that specialised personnel conducts an individual assessment of the child’s personal situation and needs.

Child detainees can be subjected to solitary confinement for a limited time period in the vast majority of EU Member States as a disciplinary or preventive measure, or as a protective measure. The minimum age set by Member States in this respect ranges from 10 to 16 years, and usually corresponds to the minimum age for criminal responsibility. At the EU level, the prohibition of torture, inhuman or degrading treatment and punishment is established under Article 4 of the EU Charter of Fundamental Rights. According to Article 24, the treatment of children by any public authority should have as a primary consideration the best interests of the child. In this context, Article 12 (5) of the Directive on special safeguards for children provides that, in cases of child detainees, Member States are bound to ensure and preserve the children’s health and physical and mental development. The European Committee for the Prevention of Torture (CPT) for its part notes that solitary confinement “can have an extremely damaging effect on the mental, somatic and social health of those concerned” and “should only be imposed in exceptional circumstances, as a last resort and for the shortest possible time”. As a principle, solitary confinement of child detainees, in particular as a disciplinary measure, is not justifiable from the perspective of the rights of the child and is contrary to the best interests of children, since it can harm their health and their physical and mental development.

FRA Opinion 8

EU Member States should impose solitary confinement on children only under exceptional circumstances, as a last resort and for the shortest possible time; and only if it serves a child protection purpose, which should be adequately defined and standardised by law and monitored by independent authorities.