Understanding Children’s Court Processes and Decisions: Perceptions of Children and Their Families

Abstract

This article presents preliminary findings regarding children’s and families’ experiences of Children’s Court proceedings in which they are participants. The findings come from a systematic review of Australian and international qualitative literature in relation to how children and their families perceive and understand these court processes. The review reveals that we know little about children’s and parents’ perspectives. However, their insights are vital so that courts can reasonably address issues and concerns, give effect to obligations under the United Nations Convention on the Rights of the Child (CRC) 1989 and foster a problem-solving, therapeutic court approach.

Keywords

Children’s Court court decisions court participation court processes procedural justice

Introduction

Our purpose in this article is to present preliminary findings regarding children’s and families’ experiences of Children’s Court proceedings in which they are participants. Understanding court processes and experiencing procedural fairness are important in determining court participants’ satisfaction with judicial decisions and outcomes (Carman, 2010; Tyler, 1988). A positive correlation between participants’ feelings of some degree of control over the court process and, in turn, positive views of fairness has long been established (Thibaut and Walker, 1975).

This article builds on Sheehan and Borowski’s (2013) national assessment of Australia’s Children’s Courts. Through a qualitative synthesis of research data in refereed journal articles, published between January 2006 and March 2017, we explore Children’s Court experiences of participating children and their families, focussing on their involvement in, and understanding of, legal proceedings. We highlight the participants’ perceptions of whether they were given an opportunity to express their views and insights, and whether they believed that they had been heard and given respectful consideration in both the proceedings and outcomes. Prior to presenting our findings, we provide some background with regard to the importance for participant children and their families of experiencing procedural fairness, understanding court processes and decisions that affect their lives, and on being given the opportunity to reflect on their court experiences through research that might contribute to improved processes and outcomes. We also provide a brief overview of the different children’s criminal courts and child protection courts in Australia (comprising New South Wales, Victoria, South Australia, Western Australia, Queensland, Tasmania, Northern Territory and the Australian Capital Territory) and the United Kingdom (comprising England, Scotland, Northern Ireland and Wales).

The Importance of Children’s and Families’ Comprehension, Participation and Recognition

In 2007, Tyler et al. produced a model highlighting the four key procedural justice elements positively related to individual satisfaction with court outcomes. The model emphasises ‘voice, participation, neutrality and acknowledgement of the rights, needs and concerns of people involved in the decision’ (Tyler et al., 2007: 470). Numerous scholars have endorsed the validity of this model (as referenced in Jenness and Calavita, 2018). The outcomes for children, youth and parents involved in either child protection or welfare court proceedings or criminal court proceedings can set the course of their future lives. Their understanding of what occurs in the courtroom and their sense of both involvement and being heard in the court proceedings are integral to just and constructive outcomes (Kilkelly, 2010; Rap, 2016). Furthermore, the involvement of children and parents in court proceedings is mandated in international law (UN Convention on the Rights of the Child (CRC) (1989); UN Committee on Rights of the Child, General Comment No. 12 (2009) and more recently the European Guidelines on Child-Friendly Justice (Kilkelly, 2010), discussed further below).

Despite this, a UK study of courts with jurisdiction related to the welfare of vulnerable people, involving 735 ‘looked after children and young people’ in England, Northern Ireland, Scotland and Wales reported that stress resulted from insufficient information about court processes and decisions, and a lack of opportunity for children and young people to voice their needs and wants (Timms and Thoburn, 2006: 167). In the United States, Block et al. (2010) found, in their study of juvenile courts, that many children were unaware of the outcome of their court case and did not believe that their perspectives had been heard (p. 665). Moreover, Quas et al. (2009), in their study of children’s understanding of dependency court proceedings, found children need help to interpret the legal process and understand what is happening in their own case. Furthermore, O’Mahony et al. (2012, 2016) found, in their observational research work in child protection courts in Ireland, that parents were concerned about their limited participation in care proceedings. Similarly, in her observational research into Irish Children’s Courts, Kilkelly (2008) noted the insufficient attention given to young offenders’ rights to ‘a fair and expeditious hearing in the presence of their parents . . . to be heard, and to understand the proceedings that have such a dramatic effect on their lives’ (p. 53). Kilkelly (2008) stressed that Children’s Court hearings ought to be required ‘to use age appropriate language, to explain the process to young people in advance and throughout in a way that they can understand, and to arrange the physical environment so that their opportunity to participate is maximized’ (p. 53). It is of significant concern that a lack of meaningful participation is evident in the range of court structures relating to young people (including welfare dependency, child protection and criminal justice).

Prompting our initial systematic literature review was a similarly concerning finding from a national assessment of Australia’s Children’s Courts (Sheehan and Borowski, 2013). In Australia, as Borowski (2013) has noted, the Children’s Courts hold ‘children and young people accountable for their anti-social behaviour and parents accountable for the care and protection of children’ (p. 268). Court personnel are, he observes, ‘jurisprudential jugglers’ balancing conflicting social demands – ‘punishment, rehabilitation, buttressing legitimate adult authority and advancing the child’s best interests’ (p. 268). In the national assessment, interviewed professionals felt that children, youth and parents appearing in Children’s Courts frequently ‘struggled to understand its processes, decisions and their implications’, and this lack of understanding impeded their opportunity to have their voices heard (Sheehan and Borowski, 2013: 137). Magistrates observed these participants’ low education levels, their distress and fear, their confusion stemming from ‘legal jargon’, their mental health issues and their intellectual disabilities (Sheehan and Borowski, 2013: 137). Despite accepting responsibility ‘and despite their best efforts’, time limitations led to magistrates’ reliance on lawyers’ explanations to clients about court proceedings and outcomes and ‘[t] his was not always done satisfactorily’ (Sheehan and Borowski, 2013: 137).

Many factors appear to contribute to limits on participants’ comprehension including cognitive difficulties, language disorders, a lack of English language skills, insufficient education, anxiety, confusing court processes, legal language and inadequate time, and while lawyers’ explanations of court processes could potentially help, this appears to be lacking (Borowski, 2013; Borowski and Sheehan, 2013). In the Western Australian component of the Children’s Court National Assessment, the following stakeholder’s comment is instructive:

I had a client, we’d been to Court three or four times, and finally he said to me ‘what just happened?’ He’d been to Court three or four times . . . back and forward, back and forward . . . He came out saying, ‘what just happened?’ At that moment I realised that his lawyer needed to be telling him in words he could understand, that I needed to be telling him in words he could understand, that the Court didn’t know that he didn’t understand. (Spiranovic et al., 2015: 109, emphasis added)

We found that negligible qualitative research has specifically focussed on this concerning issue and no Australian research in the past decade has directly consulted children and parents about their understanding and perspectives. A 2011 New Zealand study which included the views of young people and their families in the Youth Court, commissioned by the Ministry of Justice, confirmed that family participation in the process was dependent on the judicial officer involved, the time allocated to the hearing and the family’s willingness to engage with the process. Over 30 years ago, a Western Australian study of the experiences of 12- to 17-year-olds in the Children’s Court (O’Connor and Sweetapple, 1988) reported that the majority lacked understanding of, or engagement with, the process and they found it frightening. A later study (McGrath, 2009) found that, although some participants perceived the court hearing to be stigmatising, overall, they responded in a positive way to the hearing, with mean scores in relation to stigmatisation being low, and perceptions of reintegration and fairness relatively high. This small number of qualitative studies stand in contrast to a wealth of literature on children’s participation in, and understanding of, Family Court involvement in Australia and internationally (see, for example, Fernando, 2014; Parkinson and Cashmore, 2008).

Children’s Criminal Courts and Child Protection Courts

It is outside the scope of this article to undertake an extensive comparative analysis of the different court structures in Australia and the United Kingdom. Both countries have struggled with the juxtaposition of the nomenclature ‘welfare’ and ‘justice’ in this arena. Muncie (2011) has reflected on the need to avoid conflating the four UK jurisdictions into one, given that the Scottish Children’s Hearing system is more of a hybrid body between the rigours of a full court-based system and a welfare/child protection court (p. 40). Bottoms and Dignan (2004), in a comprehensive outline of the four systems of England, Wales, Scotland and Northern Ireland, stated that when the two arms of juvenile courts were established in the United Kingdom, the welfare arm was ‘ideologically subordinate’ to the other criminal arm (p. 23). Muncie (2011) suggested, after an analysis of the various UK systems, that the informal and non-adversarial models prevalent in the welfare courts should be the model used elsewhere for youth justice (p. 49).

The Criminal Division of Australian Children’s Courts hears matters related to children between ages 10 and 17 (Cuneen et al., 2015) who have been accused of committing a crime and, in the Family Division, children are the subjects of proceedings related to their care and protection. In all Australian jurisdictions, the legal framework for the divisional responsibility is provided for in legislation establishing the Children’s Courts (e.g. in Victoria, the Children, Youth and Families Act (2005)). Notably, in Australia, many children are the subjects of proceedings in both the Criminal Division and the Family Division of the Children’s Court, and this reflects a ‘highly socio-economically disadvantaged and marginalised’ clientele dealing with multiple complex issues in their lives (Borowski, 2013: 279).

Inadequate legal aid options also characterise the Australian Children’s Court system, which means that lawyers may have limited time to prepare cases, and they may not be experienced in working with children (Borowski, 2013). This aspect of lack of support for legal aid in guiding documents such as the 2010 Council of Europe Child-Friendly Guidelines has been referenced by Liefaard (2016) as well. In both the criminal and the child protection jurisdictions, lawyers are required to act upon children’s instructions – direct representation – not to present the lawyer’s view of what is in the child’s best interests. Professionals working in the Children’s Court jurisdictions in Australia are encouraged to engage in education related to ‘developmental psychology, childhood trauma arising from abuse and/or neglect and removal, developmental criminology, mental health, intellectual disability and communication skills’ (Borowski, 2013: 278).

Australian criminal courts like those (generally) in the United Kingdom, including Children’s Courts, are predominately adversarial in nature – the judge’s or magistrate’s role is passive adjudication, while lawyers typically represent opposing sides. Children and families may be less likely to participate in these proceedings. Adversarial courts are common in English-speaking countries although, increasingly, alternative means of dispute resolution and therapeutic jurisprudence are characterising some courts. The inquisitorial system common to continental Europe has more scope for involvement of parents and young persons (Rap and Weijers, 2013), but Rap’s (2013) extensive research in relation to a number of the youth court systems reveals inconsistencies in hearing the voices of young persons in those courts in different countries. Specialist Children’s Courts that foster a therapeutic jurisprudence approach that seeks to achieve ownership of, and cooperation with, outcomes arrived at through exploration of issues and attention to the consideration of constructive options, and the provision of appropriate supports, to achieve positive results, characteristically position participants’ voices front and centre. Child protection or welfare courts and local authority care proceeding courts have different parameters around participation that more closely align with therapeutic justice ideals. Later in this article, we consider how therapeutic jurisprudence can lead the way in ensuring a less adversarial approach while also honouring obligations under the CRC and other associated guidelines.

In many jurisdictions, a number of scholars (Kilkelly, 2008; Liefaard, 2016; Rap, 2013; Rap and Weijers, 2016; Sheehan and Borowski, 2013; Varma, 2007) have also lamented the lack of parents’ voices in the various systems, and they have contended that parental input can co-exist with judicial and the young person’s voice. Rap (2013) has argued that research convincingly reveals that parental input is vital, given that they are often at the ‘front-line’ of implementation of orders from the courts, and can successfully guide the young person towards more successful resolutions.

Our Aims

The National Assessment of Australia’s Children’s Courts led to concerns about the minimal participation, and the missing voices, of children, youth and parents in both family division and criminal division Children’s Courts proceedings. This prompted a call for further research into this important issue, with a view to proposing positive change. Qualitative research insights can enhance understanding of, first, what court participants perceive to be working well and, second, what may need to change to achieve reasonable, fair and just court processes and decisions. Given this, this article presents initial findings from a systematic review of qualitative research literature in peer-reviewed journals that has explored the views and experiences of children, youth and their families. Our ongoing research will shed light on what can be learnt from published government and non-government grey literature (Saunders, Lansdell & Frederick, in preparation). Further research is planned to fill the gaps in existing research and to propose constructive change.

Methodology

The first step in the systematic review involved specifying the parameters of the review and, in particular, the relevant research question. The review aimed to be international in scope as illustrated by the breadth of the research question: What do we know from Australian and international qualitative research about how children and their families understand Children’s Court processes and decisions?

Retrieval and selection of studies

The next step involved the identification of relevant studies and study selection. This involved the following:

Identification of relevant articles through systematic searches in three electronic databases: Criminal Justice Abstracts with Full Text, ProQuest and Scopus;

Search terms: (‘children’s court*’ OR ‘juvenile* court*’ OR ‘dependency court*’ OR ‘youth court’) AND (‘children’s participation’ OR ‘children’s understanding’ OR ‘children’s perspective*’ OR ‘children’s assessment’ OR ‘children’s experience*’ OR ‘children’s voices’ OR ‘children’s views’) AND (‘qualitative research’);

(‘parent* voices’ OR ‘parent* understanding’ OR ‘parent* assessment’ OR ‘parent* experiences’) OR ‘(parent* participation’ OR ‘parent* views’ OR ‘parent* rights’) AND (‘children’s court*’ OR ‘juvenile court*’ OR ‘youth court*’ OR ‘dependency court’) AND (‘qualitative research’).

Decisions regarding inclusion criteria were made by two researchers with any disagreements resolved by the third researcher. Titles and abstracts were viewed and full papers were read when they were perceived to be relevant. There was a restriction as to the years of publication but no geographical restrictions.

Inclusion criteria

○ Full paper is available;

○ Paper must be an empirical study published in a peer-reviewed journal article;

○ Published between January 2006 and March 2017;

○ Paper must be published in English;

○ Paper reports on children’s or parents’ insights;

○ Paper reports on Children’s Court, Juvenile Court, Youth Court or Dependency Court;

○ Must include a qualitative research design and include qualitative data;

○ Only if refereed journal article.

Exclusion criteria

○ Research design is quantitative and does not provide any qualitative data;

○ Research that explores children’s or parents’ insights into other courts or other topics;

○ Paper reports on courts other than Children’s Court, Juvenile Court, Youth Court or Dependency Court;

○ Papers do not cover research but provide a commentary;

○ Papers published outside of the pre-determined time frame: January 2006 to March 2017;

○ Not a refereed journal article;

○ Research that focuses on the perspectives of other stakeholders in the court process.

The search produced 813 potentially eligible studies. The researchers each looked at 12 random references from the search to decide whether to include or exclude them as relevant to the research question and to confirm reasons for inclusion or exclusion as a quality control mechanism. They also noted references that would be useful for contextualising the topic.

Each researcher then looked at the title and abstracts of at least one-third of potentially relevant references, to include or exclude from our final set. This resulted in 15 likely relevant references. A quality appraisal process was applied whereby articles were selected only if they appeared in peer-reviewed journals. A three-pronged approach to the search was used (protocol-based elements – using databases; snowballing – checking whether additional studies had been published by authors after their identification in the first phase of database searches; and, personal-based strategies whereby reference lists of every article (in the final 15) were trawled by the researchers to determine if there were other relevant articles). This method, endorsed by Greenhalg and Peacock (2005), ensures the quality of the review and the likely discovery of all relevant research articles.

All three researchers read the likely relevant references to finally include or exclude in the final set, which resulted in only eight articles fully fitting our criteria. A flowchart illustrating the phases of the review is presented in Figure 1. The most common reasons for rejection were that the articles focused on either judges’ or magistrates’ voices or those of lawyers; the studies involved quantitative research, and/or they involved different courts, such as the Family Courts.

Figure 1.

Flowchart of Systematic Review.

Results

The articles forming part of the final eight included three which focused on parents’ experiences (Pennington, 2015, 2017; Richardson et al., 2014) and five in relation to children’s and young people’s voices (Block et al., 2010; Deuchar and Sapouna, 2016; Hobbs et al., 2014; Morash et al., 2014; Timms and Thoburn, 2006).

Coding and analysis of the studies

We independently read each article, identifying the themes and illustrative quotes and extracted the raw qualitative data from the references for thematic analysis. A data chart (Table 1) was prepared using descriptors relating to the source, country, setting, sample size, stated sample characteristics and the data collection method.

Table 1.

Data Chart.

Reference	Country	Setting	Sample size	Stated sample characteristics	Data collection method
Deuchar and Sapouna (2016)	United Kingdom (Scotland)	One local authority’s support service (West Central Lowlands of Scotland)	26	– 15 young people (13 males and 2 females). - 6 stakeholders (3 defence agents who represented young people at court, 1 Reporter, 1 Procurator Fiscal, 1 Manager of the Criminal Justice Social Work Service based within the local Sheriff Court). - 5 staff delivering the court support service within the local authority.	Semi-structured interviews.
Timms and Thoburn (2006)	United Kingdom	Local authorities across the United Kingdom (England, Northern Ireland, Scotland and Wales)	735	– Looked after children and young people aged 10–18. - 60% (438) of the respondents were girls/young women and 40% (296) were boys/young men (1 child did not specify his or her gender).	Survey questionnaire (with space for ‘free text’ boxes included).
Block et al. (2010)	United States	Dependency court (large urban area of western state)	85	– Forty-three 7- to 8-year-olds, M = 7.56 years, 24 females. - Forty-two 9- to 10-year-olds, M = 9.57 years; 20 females. - 45% African American, 32% Caucasian, 22% Hispanic, 1% Asian.	– Children’s Court Questionnaire (CCQ). A structured interview created to assess children’s knowledge, attitudes and perceived legal participation. - State Anxiety Inventory for Children (STAI-C) standardised Questionnaire. - Demographic information form.
Hobbs et al. (2014)	United States	Dependency and Criminal courts – western states data collected in mid to late 1980s from children (including questions about children’s feelings concerning seeing the defendant and answering questions in court)	137	Dependency court sample n = 85 (44 females; 41 males) ages 7–10 years (M = 8.61 years; SD = 1.12). Criminal court sample n = 52 (42 females; 10 males) ages 4–16 years (M = 10.42; SD = 3.71).	Data were collected from interviews with the children and from their court files.
Morash et al. (2014)	United States	Michigan county juvenile court jurisdiction with a mix of medium and small cities and towns, suburban areas and rural areas	27	Participant recruitment involved two strategies: (a) a census of girls who had resided in the county-based group home that was most commonly used for residential placement and (b) a maximum variation sample of girls with extensive juvenile court involvement who had not been placed in the group home. Study participants ranged in age from age 17 to 19 years.	Interviews with 27 girls and the professionals who worked with them yielded retrospective accounts of court interventions into families.
Pennington (2015)	United States	Two juvenile courts in the greater metropolitan Northeast United States	2 (families)	Kit’s background is typical of parents in Court 1 in that she is African American, does not have a high school diploma, is not working full-time and her child faces a crime of violence. Kit is a 36-year-old mother in court with her 15-year-old son Melvin. Judy is typical of many of the parents in Court 2 in that she is a White woman with a high school diploma and she is currently employed. Her nephew Richard is accused of a property offence. Judy is the aunt and custodial guardian of Richard, who is charged with larceny of a motor vehicle and driving without a valid licence. Judy has been Richard’s legal guardian since his mother’s death. Judy is divorced and in her 50s.	Data for these two case studies were collected in a systematic way over a 10-month period, between December 2010 and September 2011.
Pennington (2017)	United States	Two juvenile courts greater metropolitan Northeast United States	30 (families)	Nineteen families were recruited from Court 1. Court 1 is located in a predominantly Black neighbourhood in a medium-sized city. Eleven families were recruited from Court 2. Court 2 is also in an urban area, but in a smaller city within a diverse, largely Hispanic neighbourhood.	Using a qualitative approach that is both multiperspectival and longitudinal, these data include 86 semi-structured interviews of youth, parents, and other close family members at different phases of the court process. This research incorporates 106 observations of participants’ actual interactions with legal authorities, including court hearings and attorney meetings with the family.
Richardson et al. (2014)	United States	Central Harlem, New York City	15	The sample was composed of 15 boys and the average age of the sample at the beginning of the study was 12.9 years. The age of the boys ranged from 12 to 15 years. 100% of the participants qualified for free lunch, a significant indicator of poverty; 11 of the 15 (73%) were from single-female-headed households and 4 were from two-parent households (27%).	Much of the data used for the analysis was collected from participant observations/interviews with parents as they prepared for upcoming court dates and observations recorded on the day of their juvenile court hearing. Each year of the study, the researcher conducted annual audio-recorded life history interviews with the 15 youth in the sample and their parents. Every year, a total of 30 interviews were conducted (15 youth interviews, 15 parent interviews).

SD: standard deviation.

Limitations of review

Our review was necessarily restricted to publications in English. The search terms were deemed the most prevalent and likely to yield results, but they may inadvertently have screened out other publications. The time period was limited, and thus excluded any earlier articles.

Findings

Parents’ experiences

Of the eight eligible studies, only three directly consulted parents: Pennington (2015, 2017) and Richardson et al. (2014). In response to our research question – What is known from qualitative research studies regarding how children and their families understand Children’s Court processes and decisions? – the following themes, illustrated below, were apparent in relation to parents’ experiences: (1) parents would like an active role (voice) for themselves and their child; (2) parents perceived court processes as unfair and unjust; (3) parents tried to help children with legal language and court processes; and (4) parents did not understand legal processes.

Parents would like an active role (voice) for themselves and their child

Some parents believed that, in court proceedings, they should have an active role and be able to speak on their child’s behalf. Parents expressed concern that lawyers control what is being said, and that parents cannot speak for the child. Moreover, they were not sure whether they could have a voice in court, or how and when they could be heard in the legal system. Monica commented,

They need to hear more from people, to listen to them. They don’t let the people talk. They only listen to what the prosecutor says or the lawyer says. They don’t let people say what they need to say . . . I think when you are in front of the judge you don’t have the time to express yourself . . . If they learned more about us, we would learn more about them or understand better. (Pennington, 2017: 42)

When discussing her son’s view of court processes, Monica said,

He thinks the same way I do. That it’s not fair . . . He wants to say something in court, he’s exactly like me . . . He said I wish to talk in there and say something about the case and he cannot do that. (Pennington, 2017: 36)

Rosa also felt that it was unfair that her views were not considered in court:

You have to talk with the lawyer and the lawyer will talk to the judge. It’s not fair because as a parent you know what happened with the child. He’s just fifteen years old. (Pennington, 2017: 41)

Darius’ view was that there is

. . . a whole lot more they can do, instead of just dealing with people through shuffling around papers in their lives, they can get a little more involved . . . adding on to the community for the better, coming out and speaking to people . . . It’s almost like dealing in cattle, because the doors are revolving, all day, five days a week. (Pennington, 2017: 42)

Tracy stated,

The parent should be able to speak and say, ‘Listen, this is what the child needs, this is what has to be done, this is what needs to be there for them’. Children can’t always make the best decisions for themselves . . . [Judges] don’t listen when the parent comes forward, and it’s like the parent is asking for this help. Like this is my child, I’m trying to actually save my child. (Pennington, 2017: 40–41)

Lisa said,

They need to talk with the parent about how to best help the child. It’s not so cut and dry. I think if there was more parental involvement [in court], the better off the juvenile will be. (Pennington, 2017: 41)

According to Marla, when considering who should make the best decisions for a child, it should be

Well, between the judge and the parent. You know, not all the parent because then we wouldn’t need a judge. So between the judge and the parent . . . Because the parent knows the child. She knows if he’s going to do certain things again . . . Give us the rights to tell our kids what we’re going to do with them. Let us punish them. But I guess they’re saying that we can’t control our kids so they have to do it. That’s what, that’s how I understand it. But their punishment just makes them angry. That’s the bottom line. It just makes the kids, the boys especially, angry. And make them do bad, worse things. Or don’t care. (Pennington, 2017: 41)

Parents perceived court processes as unfair and unjust

As a parent, Kit came into the court process feeling hopeful, but left the court proceedings feeling that lawyers and police were ‘crooked’, and that the system was unfair:

Lawyers are liars and cops are too. But cops are more full of [expletive]. And judges are crooked. Like, I want them to know, just because it’s the legal system, don’t mean it ain’t criminal. You understand? Everybody’s crooked. I don’t care what you say. Everybody’s crooked. (Pennington, 2015: 913)

As an African American father, Michael, felt that racial discrimination would result in his son receiving unfair treatment in court:

The system is not fair and it will never be fair. You can’t get any justice in this court. Nothing can be done. (Pennington, 2017: 39)

Lisa talked about her discussions with other mothers about their experiences of unfairness:

Everyone in jail got a mother. So there’s a few people that I chat with about the system . . . how they feel about it . . . their experience and my experience is the same. People go to court all the time and we talk. So we just compare [how we have been wronged by the system]. (Pennington, 2017: 39)

Judy told her son,

Even if the facts aren’t accurate, you can still get into a lot of trouble. It means that the good doesn’t always prevail. (Pennington, 2015: 914)

Parents did not understand legal processes

Some parents’ comments suggested that they did not understand legal roles within the court, such as the lawyer acting for the child and not the parent. For example, Kit did not understand that children have the right to have confidential conversations with their lawyer:

Yeah, there’s a lot I wanted to tell the judge, but . . . [my son’s] lawyer . . . is gonna listen to him [my son] before he listened to me. (Pennington, 2015: 909)

Some parents did not understand the rules of evidence; why some evidence was included and some not. Judy said,

I asked [Anne, the lawyer] if she got the evidence she was looking for regarding the other person and she said no. Then why are we still going to court? There’s still a big piece of the puzzle missing . . . How can you have a fair trial without the full facts? The way it looks on paper is not like it is in reality, it’s not accurate. [The judge] don’t know the full him. (Pennington, 2015: 911)

Judy added,

Nothing was being resolved. The things that we wanted to have brought out wasn’t being brought out . . . I think it was extremely long and frustrating. (Pennington, 2015: 914)

Parents tried to help children with legal language and court processes

Despite the limited legal understanding noted above, some parents tried to explain to their children the language used between legal professionals. Referring to his son, Darius said,

He didn’t understand all the fancy words and the back-and-forth between the DA [District Attorney] and the lawyer. But I explained it to him – I tried to break it down to him to the lowest component so to speak. (Pennington, 2017: 35)

Nicole similarly stated that it was necessary for her to attend court with her son ‘to help him understand what’s going on . . . to interpret for him what the lawyer says’. She further commented that when children lack understanding of the court process, ‘they can get railroaded into situations’ (Pennington, 2017: 36).

As a parent, Lisa tried to explain legal concepts to her son and to his friends:

They’re like, ‘What is motions?’ I have to tell them . . . they don’t understand . . . They put it on for motions for the next week . . . That’s all they know. But they had no clue what motions meant. And that they can also write their own motions if they feel they’re not being treated fairly or they feel their lawyer isn’t really trying to help them. They’re more out to, you know, plead them out, get the case out and just be done with them, move on to the next one. That doesn’t help the juvenile . . . it just shows really that they feel like nobody cares. (Pennington, 2017: 36)

Children’s experiences

The following themes, illustrated below, draw attention to children’s varied experiences with lawyers in court; courts lacked knowledge of children’s home environments; and court support social workers helped with the complexity of court processes.

Children reported varied views of their experiences with lawyers in court

A 14-year-old sexual abuse victim commented,

It wasn’t bad – not as scary as I thought it would be. DA made it easy. (Hobbs et al., 2014: 414)

However, a 13-year-old sexual abuse victim said it was

Worse than I thought. Like a nightmare. I did not like [the defense attorney]. (Hobbs et al., 2014: 414)

A 10-year-old child physical abuse victim reported feeling

Disturbed because of like their lawyer, they would say things that aren’t true. Then you try to talk back and they say, ‘no further questions’. (Hobbs et al., 2014: 414)

A 10-year-old victim of sexual abuse said,

. . . I hate cross examination. They ask tough questions and tricky and they’re silly and not true. (Hobbs et al., 2014: 414)

Courts lacked knowledge of children’s home environments

Morash et al. (2014) interviewed young girls in the Michigan juvenile justice system. In several cases, no clear information about the home environment was presented either because neither the parents nor the child had disclosed it, or because an independent assessment was not undertaken. For most girls, restriction to the home (tethering) failed because of neglect, violence, drug use or general chaos in the home. The court’s lack of knowledge of the violence, drugs and/or abuse in the home increased the girls’ exposure to a damaging environment. For example, after an arrest for domestic violence against her mother, the court tethered a study participant (#14) to her mother’s home. The girl described ongoing mutual combat with her mother and siblings. She explained that her mother, with bipolar disorder, ‘gets mad a lot’. ‘She’s on a whole bunch of medicines, and sometimes she’ll get off her medicine, and it would make her act really crazy’. Eventually, the courts moved this girl to a foster home, and later to a programme for pregnant girls (Morash et al., 2014: 308).

The courts used tethering for another girl (#19) with the most toxic family environment of any of the study participants. She expressed disgust that her 40-year-old drug-addicted mother lived with a 20-year-old, alcoholic boyfriend. She said,

He’s been to AA meetings. He’s been on probation . . . on house arrest . . . on tether. He’s been through so much stuff. And he don’t beat my mom no more, but he, now he sells drugs. There are drugs around the house and that’s why I am never there. (Morash et al., 2014: 308)

The mother’s boyfriend previously abused and continued to threaten this girl and her two younger siblings. The girl explained the effect of tether: ‘Getting tethered’ was the point when ‘things just started going downhill and then I just didn’t care, really’ (Morash et al., 2014: 308–309).

Some girls identified court-ordered confinement to damaging and stressful home environments as the trigger to run away. One of them (#3), who came to the court’s attention for truancy, said tether was ‘hard because my mom was like flipping out. . .she made sure the judge ordered that I couldn’t talk to any of my friends, even the good ones’ (Morash et al., 2014: 309). She further explained how being tethered, and court-ordered not to talk to friends, prompted her running away to live in another city where, for several months, she supported herself with restaurant work: ‘So I was like completely cut off. My mom’s insane. I was on tether, so I was like going a little bit crazy’. The professional agreed the mother was overly controlling, and when nobody believed accounts of the mother’s behaviour, the girl had ‘no choice’ but to run away (Morash et al., 2014: 309).

Court support social workers helped with the complexity of court processes

Deuchar and Sapouna (2016) interviewed 26 young people under 18 years of age attending court in Scotland. They reported that the young people found court support social workers (Whole System Team (WST) workers) helpful in explaining court processes and legal terminology, enabling them to be aware of their rights, improving their ability to participate and assisting many to avoid custodial sentences. Barry said,

Sometimes I don’t understand their (the Sheriff’s) big fancy words . . . and Laura and the rest of the team had been up at court all their life with young people, so they know what they’re saying. (Deuchar and Sapouna, 2016: 135)

Liam felt that

It’s harder to go to court yourself because you don’t really know what to expect and stuff like that and what’s going to happen, basically. But if someone from the Whole System Team came then I know for a fact they would be a lot clearer. (Deuchar and Sapouna, 2016: 135)

Deuchar and Sapouna (2016) found that lawyers interviewed in their research lacked the time to provide an explanation of the complex court processes to the young people resulting in high levels of anxiety. The WST court support service therefore was of considerable assistance in helping them feel supported. Joel explained,

They (WST) just spoke about it step by step. They’d . . . showed me reports, what a court report was like and who was who in the court room, what I would need to say, what I would need to do stuff like that . . . it’s knowing you’ve got that other wee extra bit of support. (Deuchar and Sapouna, 2016: 135)

Catherine commented,

He was dead supportive. . . he explained everything to me before I got to court . . . it made me a feel a lot better because I was nervous and scared. (Deuchar and Sapouna, 2016: 134)

Discussion

The studies reviewed in this article highlight some key issues regarding how children and their families understand Children’s Court processes and decisions. These include (1) barriers to the participation of children and their parents in court processes and (2) the courts’ inadequate knowledge and understanding of both children’s home environments, and support services that can provide practical assistance and help lead to better outcomes. Many identified issues mirror the results of the 2011 New Zealand Ministry of Justice survey of young persons and their families’ experiences of the youth justice system in that country.

Barriers to participation of children and families

The first key finding is that parents and children and young people encountered various barriers to court participation. Several parents reported that they could not speak in court nor have their views considered, thus were unable to participate in the court proceedings. There was an overall feeling of alienation from the process. They believed they had contributions to make which were not considered, especially regarding their knowledge of their child. These feelings possibly contributed to perceptions of court processes as unfair and unjust. There was also a strong indication that a lack of understanding of legal roles, processes and language further excluded them from participation. However, despite limited understanding, some parents did try to help their children as best they could to ‘understand what’s going on’ and feared for them being ‘railroaded’. Parents also made worthwhile points, for example, that they know and care for their children, despite the problems they have found themselves in, and often would like to help but are constrained by the procedures they have encountered. Children and young people also reported distressing and confusing experiences, describing some as ‘like a nightmare’, ‘things (being said) that aren’t true’, and not understanding ‘big fancy words’.

The barriers to participation reported by the families in this study concur with the concerns expressed in the literature regarding lack of understanding and engagement, unclear court processes and legal language and stressful and fearful experiences that relate to the court setting as well as the personnel within (Block et al., 2010; Borowski and Sheehan, 2013; Kilkelly, 2008; New Zealand Ministry of Justice, 2011; O’Connor and Sweetapple, 1988; Quas et al., 2009; Rap, 2013, 2016; Spiranovic et al., 2015; Timms and Thoburn, 2006). The findings also reveal that the key provision – Article 12 of the UN CRC appears not to be being followed in these courts (discussed further below).

Courts’ lack of knowledge and understanding of children’s home environments

The second key finding is that court personnel appeared to have limited knowledge about, and understanding of, the home environments of some children and young people. In the Morash et al. (2014) study, no clear information regarding home situations was presented, which led to returning young people to homes involving drug addiction and violence. It was also apparent that some lawyers lack the time to explain complex court processes to their clients (Deuchar and Sapouna, 2016). Again, this finding concurs with the literature which acknowledges the complex needs of the families concerned (Borowski, 2013) but notes that lawyers’ consultation time is very limited (Spiranovic et al., 2015) and that suitable support and intervention services are very limited (Borowski and Sheehan, 2013).

The role of support services

This study’s third key finding is strong support for the assistance that court support social workers provided in Scotland (Deuchar and Sapouna, 2016). This study reported that assistance with the very issues raised in these findings, such as having both the time and knowledge to explain court processes and legal terms, as well as to provide support to reduce anxiety and uncertainty, enabled young people to participate more effectively in the court process. This was also identified in the New Zealand Ministry of Justice (2011) study where youth advocates greatly contributed to effective participation.

Young participants appreciated this type of support service, and it is a course of action that acknowledges and enhances these children’s and young peoples’ rights to participation and consultation, as documented in the UN CRC, Article 12, and the UN Committee on the Rights of the Child, General Comment No 12 (2009).

The CRC

The importance of children being given the opportunity to participate in Children’s Court proceedings, and being consulted about their experiences, understanding and perspectives is embedded in the UN CRC 1989, Article 12, and the UN Committee on the Rights of the Child, General Comment No. 12 (2009) ‘The right of the child to be heard’. Article 12(2) of the CRC (1989) states that

. . . the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Referring to Article 12, the UN Committee, in General Comment No. 12, notes that

proceedings must be both accessible and child-appropriate [and] particular attention needs to be paid to the provision and delivery of child-friendly information, adequate support for self-advocacy, appropriately trained staff, design of court rooms, clothing of judges and lawyers, sight screens, and separate waiting rooms. (Para 34)

Paras. 35–37 state that having decided to be heard the child will have to decide how to be heard:

either directly, or through a representative [the parent(s), a lawyer, or another person e.g. a social worker] or appropriate body’ [and] wherever possible, the child must be given the opportunity to be directly heard in any proceedings . . . Representatives must have sufficient knowledge and understanding of the decision-making process and experience in working with children [and] the representative must be aware that she or he represents exclusively the interest of the child.

Moreover, Article 12(2) of the CRC requires that a child alleged to have, accused of, or recognised as having infringed the penal law has the right to be heard. Although this right is specified to be ‘fully observed during all stages of the judicial process’, children’s experiences of, and perspectives on, issues that affect them may too often not be sought or acknowledged in legal matters which concern them. As the experience and outcomes of involvement in any court proceeding can greatly affect the lives of children and families and the societies in which they live, their insights are integral to the assessment of (1) what is working well and (2) what needs to change if court processes and decisions are to be reasonable, fair and just.

A country’s ratification of the CRC is no guarantee that procedures will be implemented in accordance with it or that there is increased awareness of children’s rights (see, for discussion, Kilkelly, 2008, 2019). For example, a 2007 Young Life and Times Survey in the United Kingdom found that 70 per cent of children and young people surveyed had ‘no knowledge’ of the CRC (Muncie, 2011: 48). It is notable that our systematic review suggests that the United States, the only country that has not ratified the CRC, does most of the very limited research in relation to both children’s voices and parents’ perspectives.

Guidelines on child-friendly justice

Of relevance, the Council of Europe has produced non-binding Guidelines on Child-Friendly Justice (Kilkelly, 2010) that provide practical tools to assist Member European Union States (including the United Kingdom) to adapt their current juvenile justice policies to accommodate the specific needs of children and young people so as to create a more child-friendly system of justice (Rap, 2016). Significantly, young people were consulted during these Guidelines’ drafting process, and Liefaard and Kilkelly (2018) note that they ‘consistently desired . . . to be heard’ (p. 72). Unfortunately, Liefaard (2016) has expressed concern that the Guidelines do not obviously incorporate active parental involvement, except for accompanying the young person to court (Kilkelly, 2010, para IV, Article 61). Moreover, in the 5 years since the Guidelines were passed, there have been limited references to them in either case law or standards (Liefaard, 2016).

Therapeutic jurisprudence

It has been suggested that problem-solving courts that address some of the underlying issues that bring many children and families to the Children’s Court might be a better alternative to courts that are adversarial in nature, as they would better provide children and parents with opportunities to tell their stories, describe their circumstances and present their views. They would also likely enhance understanding of processes, promote procedural fairness and, in turn, better ensure compliance with, and acceptance of, recommendations and outcomes. Indeed, in Australia, Sheehan and Borowski (2013) noted that magistrates ‘supported the notion of the [Children’s] Court as a therapeutic jurisprudence-informed problem-solving court’ (p. 387), particularly after successful innovations in the Indigenous youth space in this respect (Potter, 2010).

It is also encouraging that, with the aim of diverting young people from the system and resolving disputes in a less combative manner, therapeutic jurisprudence has been introduced in some youth justice systems both in Australia and internationally (Richards et al., 2017). Indeed, drawing on the behavioural sciences, including psychology and social work, this shift in approach is part of a worldwide drive to introduce therapeutic justice into mainstream court settings (King, 2009; Richardson et al., 2016).

Future research

This review has highlighted various directions for future research. Original, qualitative research is required to capture children’s and parents’ voices about their experiences in the Children’s Courts. This could be achieved by replicating Block et al’.s (2010) study which focused on the use of questionnaires to gain knowledge about the role of court personnel, and the children’s and parent’s feelings about their participation and outcomes, while taking account of possible obstacles including obtaining ethics clearance from gatekeepers and dealing with the in camera rule. The latter is prevalent in many courts which prevents parties to proceedings from revealing information about their case to parties who are not parties (O’Mahony et al., 2016) and, if strictly applied, would mean that the experiences of parents might only be able to be gleaned through the eyes of ‘how professionals understand and represent the issues associated with their participation’ (p. 6). The views of Magistrates and other judicial personnel could also be obtained, and those results compared and contrasted to provide valuable insights to inform the planning of programmes and processes within the courts that support therapeutic justice models.

Conclusion

It is concerning that this systematic review of recent literature suggests that we know very little about how children and parents understand and experience Children’s Court processes and decisions – that is, at least, from having directly consulted children and parents and asking them to share their insights so that the approach that our courts take might try to address any issues or concerns. It seems apparent from the data that are available that neither children nor parents are given the opportunity to participate in court proceedings to the extent that they would like and, in the case of children who are the subject of court proceedings in countries that have ratified the CRC, it appears that children’s participation rights under Article 12 are not being met (notably the United States has not ratified the CRC). While Rap (2013) has engaged in extensive observational work of European youth court systems and Kilkelly (2008, 2010) surveyed young people when the EU Guidelines on Child-Friendly Justice were drafted, direct interviews seeking parents’ and/or children’s views appears to be a gap that needs to be addressed.

Footnotes

Funding

The author(s) received no financial support for the research, authorship and/or publication of this article.

ORCID iD

John Frederick

Author biographies

Bernadette J. Saunders is senior lecturer and researcher in the Department of Social Work, Faculty of Medicine, Nursing and Health Sciences, Monash University Melbourne, Australia. Her research primarily focuses on the impact of law and legal systems on disadvantaged groups, particularly children and young people, and she advocates for children’s human rights through her writing and public commentary.

Gaye Lansdell is associate professor in the Law Faculty at Monash University, Clayton, Victoria, Australia. Her teaching and research interests include criminal law and criminology, disadvantaged groups within the justice system, ethics and legal education. She has been a practising lawyer and has held academic positions in Australia and the UK.

John Frederick is adjunct research associate in the Department of Social Work, Monash University, Melbourne, Australia and visiting scholar in the School of Social and Political Science, University of Edinburgh. His research interests include adverse childhood experiences and their consequences in later life.

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