Concluding Remarks on Children’s Access to and Participation in Justice

Summary

From all the rich contributions in this volume, it emerges first of all that the participatory rights of minors are now enshrined and firmly anchored on international as well as national foundations. The right of the child to participate in decisions that concern them is now implemented in most countries to varying degrees and in different ways. This diversity in the implementation of participatory rights, which sometimes borders on inequality, can be seen at various levels.

The child’s right to be heard diff ers according to their age and, above all, according to whether or not they are capable of ‘discernment’ or capable of forming their own views. In my opinion, only discerning minors should participate because otherwise children risk being manipulated and making statements they do not understand, and which could be turned against them. In particular, in the context of child protection, when the minor is not capable of discernment, thought must be given to autonomous and independent representation of the child’s interests because, in most cases, there is a conflict of loyalty between the child and their parents or between the child and their foster family or the structure that assumes their care.

Nor are the participatory rights of the child the same depending on the proceedings in which they are applied or the position of the child in the proceedings. The participation of the child is obviously different depending on whether they are a party or not, and therefore legally capable or not. In the latter case, the child’s hearing is more important because it is their only means of participating in the proceedings.

When the child is the subject of criminal proceedings, it is no longer a question of mere participation, but of a charge that could lead to a conviction. Given the age of the child concerned, a specialized overall regime must be put in place, from the beginning to the end of the procedure, including the phase of implementing the sanction. However, this specialization remains fragmented and is even declining.