Directive on the procedural safeguards for children

The EU Roadmap on procedural rights for suspects and accused people in criminal matters continues apace, with three Commission proposals for Directives being considered by the institutions: the right to legal aid; procedural safeguards for children; and strengthening certain aspects of the presumption of innocence and the right to be present at trial. The UK has an option whether to engage in deliberations and voting on these instruments and has decided not to opt in at this stage, though once they are adopted, could choose to do so at any time. We prepared detailed briefings on the first two measures in collaboration with the International Commission of Jurists, which now has a Brussels office, and these were published on 5th September. The final briefing will follow shortly.

With regard to children, the proposed Directive provides much to be welcomed in the assessment and support of children’s needs during the criminal process. However, substantial amendment by the Member States in the Council of Ministers has diluted the safeguards it might provide. The original proposal would create the right to mandatory legal representation, individual assessment for special measures, separate detention from adults and privacy. We make proposals to strengthen these measures so as to ensure that they are clear as to the rights they provide and effective in practice. We also provide evidence as to why these measures are essential to protect the best interests of the child and should not be weakened by the Member States.

We will engage with MEPs, the Council, the Commission and other NGOs over the next six months to seek strong and effective measures in all three areas. Further information can be found on our website, together with the briefings.

  • The Directive should apply to persons under the age of 18 years at the time of the alleged commission of an offence.
  • The protection of the Directive should not be excluded for children in ‘minor’ proceedings.
  • The Directive should require that information is provided in simple, child-friendly language and competent authorities verify that the child understands their rights and the charges against them.
  • Mandatory representation should be required for all children without exception.
  • The purpose of individual assessment should be to identify the modifications to proceedings necessary to ensure the effective participation of the child. The assessment must take place at the earliest opportunity, so as to be taken into account by all relevant authorities in the investigation and trial. Derogation should only be permitted only where necessary in the best interests of the child, in the circumstances of the case.
  • Children should have prompt access to a medical examination upon deprivation of liberty. Examinations should not be denied.
    Audio-visual recording should be provided in all cases, without a proportionality review or other exception.
  • Every child arrested and deprived of liberty should be brought before a court within 24 hours and subject to review at least every two weeks. The right to challenge the legality of the deprivation of liberty and to receive a prompt decision should also be available.
  • Children should not be detained with adults except where an individual attains majority while in detention and their continued detention remains necessary and proportionate and it is in the best interests of this individual and the other children concerned.
  • Children should be treated in a manner appropriate to their age and needs as currently proposed in article 13(2).
  • The privacy and identity of children during criminal proceedings should be protected in all circumstances.
  • The right of children to effectively participate at their trial should be protected by the Directive, not simply the right to be present.
  • Where children were not present at their trial they should have the right to a retrial in accordance with Council Framework Decision 2009/299/JHA.
  • No reimbursement of costs by children should be required for the assessments and procedures guaranteed under the Directive.
  • A new article should be included, to respect and ensure the rights provided by the Directive without discrimination of any kind and to promote training of professionals administering juvenile justice, particularly in relation to vulnerable groups of children.