Child Participation as the Holy Grail: Effective and Meaningful Participation in Judicial Proceedings?

Abstract

The aim of this contribution is to reflect on how to ensure the effective participation of children in judicial procedures as a fundamental right of the child. The child’s right to participation has received much scholarly attention. Child participation has been hailed as a legal recognition of the fact that children are bearers of rights, and therefore have the right to take part in important decisions that shape their lives. However, the principle of child participation has also been scrutinised for being ineffective and void of real meaning. This chapter analyses the participation of children in two legal systems in the Netherlands: the immigration system and the youth care system. It describes the opportunities for children to participate in the decision-making that takes place in these two systems. The interests of children may be the same as their parents’ interests, or differ from them. The state may take a decision that runs counter to what children and parents perceive to be in their interest. At the heart of these tensions lies the issue of child participation, and the related concepts of the ‘best interests’ of the child and ‘self-determination’. In this contribution it is argued that effective participation not only requires reflection upon practical or technical conditions-such as themanner in which children are informed about the procedure, and whether or not they receive legal (or other appropriate assistance) from well-trained professionals and child-friendly environments-but that it also requires profound reflection upon the nature and purpose of laws, policies and practices: do these allow for the effective and meaningful participation of children?.