Children’s rights and judicial independence in the dock

Hundreds of judges and magistrates from around the Commonwealth have called on Commonwealth governments to bolster and uphold the legal rights of children.

The Commonwealth Magistrates’ and Judges’ Association (CMJA), convening in the Turks and Caicos Islands recently for its triennial Conference and General Assembly, rallied against both the “inadequate safeguards” for judicial independence in some Commonwealth countries and legal processes which do not properly protect juveniles.

Some 250 judges and magistrates from 44 Commonwealth jurisdictions attended the ‘Justice for the Next Generation’ conference from 26 September to 3 October 2009.

International legal rights

In their declaration, the CMJA called on member states to “take urgent steps to introduce and implement child justice systems” to bring them into line with agreed international standards.

The association pledged to work with governments in “the development and promotion of court procedures which are child appropriate and gender and disability sensitive, the systematic use of child rights principles ... [and] the best interests of the child in the administration of justice.”

It added that judicial action, such as custodial sentencing, intended to deprive a child’s liberty should only be used as a “measure of last resort and for the shortest possible time”.

The declaration was issued in conjunction with the United Nations Children's Fund (UNICEF) following a joint colloquium in Providenciales, on 2 October 2009. International treaties relating to the rights of children, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child should be upheld, it noted.

Illegal or oppressive practices

In addition to the practical application of laws that affect children, conference delegates discussed the implementation of the Latimer House Principles, as well as judicial training and the role of magistrates, among other subjects.

Sir Mark Potter, President of the Family Division of the High Court of England and Wales, UK, claimed that judicial rulings could be “undoubtedly influential” in developing the legal rights of children.

“None of us should underestimate our power over time to change what people think, by the general trend and careful wording of our decisions and by emphasising children’s rights both when hearing family disputes and cases involving the care and adoption of children, or when trying civil or criminal cases in which illegal or oppressive practices come to light and call for legitimate comment," he said.

‘Midwives to the constitution’

Dr Karen Brewer, Secretary-General of the Commonwealth Magistrates’ and Judges’ Association, noted: “Magistrates are the first point of contact that most members of the public have with the court system and play an important role in promoting judicial independence.

“However there is a lack, throughout the Commonwealth, of administrative and financial security, and security of tenure of magistrates - and their independence is not guaranteed by the constitutions of many Commonwealth countries.”

"Judicial independence and accountability are not just esoteric matters,” said Sir David Simmons, Chief Justice of Barbados, “they are principles which are fundamental to good governance in democratic societies.”

Theresa Shija, Chief Magistrate of Benue State, Nigeria, added: “Judges as midwives to the constitution are determined to give birth and nurture the rule of law to maturity.”

Secretariat Links:

• Latimer House Principles

Related Websites:

• CMJA