Observing Juvenile Courtrooms: Testing the Implementation of Guidelines on Child-Friendly Justice in Spain

Information

From their first involvement with the justice system and throughout that process, children and their parents should be promptly and adequately informed of their rights and the means they can use to exercise them. The Guidelines provide a detailed list with key information that children and their parents should receive. The European Court established that the child’s right to a fair trial does not require a complete understanding of every point of law, but an effective participation involves the need to understand why they are being prosecuted (the charges against them); what may happen to them, now and in the future; what their role is in the process; what options they have; and what the consequences of these options are. Furthermore, the Guidelines underline that the information should be adapted to their age and maturity, and provided in an understandable language, which is gender- and culture-sensitive. To this end, child-friendly material containing relevant information must be provided but, as the UN Committee of the Rights of the Child points out, ‘providing the child with an official document is insufficient and an oral explanation is necessary’ (General Comment No. 24).

Adapted proceedings, professionals and settings

The Guidelines (paragraph 54) establish that in all proceedings, children should be treated with respect for their age, their special needs, their maturity and level of understanding, bearing in mind any communication difficulties they may have. In addition, children should be dealt with in non-intimidating and child-sensitive settings. As Liefaard (2016) states, juvenile justice proceedings ‘should be conducted in an atmosphere of understanding to allow the child to participate and to express herself/himself freely’ (p. 910). To achieve this, the system needs trained professionals and adapted settings.

Thus, professionals having direct contact with children should also be trained in communicating with them at all ages and stages of their development, and in situations of vulnerability. As Kilkelly (2008: 54) points out, the judicial training raises awareness of the duty to facilitate the involvement of young people in the process and to develop the necessary skills to engage with young people. Also, the lawyer’s participation is particularly important here. It is essential to guarantee the access to court and fair trial, and thus, the guidelines recognise that children have the right to their own legal counsel and representation in their own name. Children should have access to free legal aid under the same or more lenient conditions as adults. In the same way, the lawyer does not have to bring forward what he or she considers to be in the best interests of the child (as does a guardian or a public defender) but should determine and defend the child’s views and opinions, as in the case of an adult client (paragraph 104).

Moreover, the architectural design of the settings is an important concern because it can make children feel unsafe and uncomfortable. The UN Committee of the Rights of the Child in its General Comment Nos 12 and 24 underscores that a child cannot be heard effectively where the environment is intimidating, hostile, insensitive or inappropriate for her or his age. In this sense, the courts should provide, where possible, special interview rooms and avoid direct confrontations between victims and perpetrators. Likewise, a child-friendly environment implies the absence of wigs, gowns or other official symbols (such as a gavel). As the Guidelines conclude ‘the setting may be relatively formal, but the behaviour of officials should be less formal and, in any case, should be child friendly’.

Finally, it should be noted that time is a crucial element. Children perceive time differently from adults. A year of proceedings represents a much more significant proportion of a child’s life than that of an adult (Vandekerckhove and O’Brien, 2013). As the UN Committee of the Rights of the Child remembers, ‘the longer this period, the more likely it is that the response loses its desired outcome’ (General Comment No. 24). Thus, time in the proceedings is a highly important issue when dealing with children. Cases in which children are involved should be handled expeditiously, and the urgency principle should be applied to provide a speedy response protecting the best interests of the child. Similarly, children may need more regular breaks throughout the trial because of their different perception of time and shorter attention span.

Dignity and privacy

Children should be treated with care, sensitivity, fairness and respect throughout any procedure or case not only because of judicial and ethical considerations but also because they should have the feeling of justice being done and of being treated with dignity and respect (Kilkelly, 2010). As shown by procedural justice theory, these feelings are important to promote positive attitudes towards the justice system and compliance with the law (Tyler and Trinkner, 2017).

Moreover, children’s vulnerability demands more protection of their privacy in court. This includes the in camera rule ³ when the interests of the children or their privacy require it, which should be reconciled with the existing principle of free access to judicial proceedings. It is also important that children be able to speak freely, and that the atmosphere is not disturbed by unwarranted interruption, unruly behaviour or transit of people in and out of the room.

No discrimination

The Guidelines remind us that the prohibition of discrimination is a well-established principle in international human rights law. Some categories of particularly vulnerable children may need special protection in this respect (Goldson and Muncie, 2012). The text lists some of these categories (i.e. race, colour or ethnic background, language, religion, political or other opinion, socio-economic background, association with a national minority, property, birth, gender identity). However, the list does not purport to be exhaustive, as other grounds for discrimination cannot be excluded. In this context, the main factor of discrimination is age and capacity and, accordingly, the justice system must ensure the child’s right to a fair trial, developing whatever mechanisms might be needed to this end.

Settings

The waiting rooms in the juvenile courts were not large. Indeed, they might be better described as corridors rather than waiting rooms. Furthermore, at Court B, the space was shared with five other juvenile courts. These rooms were overcrowded because of delays and people seemed to be nervous, moving around from one place to another without sitting down. On one occasion, there were 52 individuals in the waiting room (FN 125.5). Moreover, tension was sometimes noticeable among the public. On one occasion, a fight broke out between witnesses (FN 42.7).

There was no dedicated space for private meetings, and thus lawyers met with the children in the presence of other people. On some occasions, lawyers, seeking more privacy, used the hall leading to the waiting room for interviews. Only on very few occasions did lawyers request the use of the prosecutor’s office to speak to their clients. Ultimately, waiting rooms were not only poor but also unfriendly because these settings were intimidating and made juveniles feel uncomfortable (see Guidelines, paragraph 54).

Waiting for the trial

The juveniles normally spent a considerable amount of time in the waiting room as proceedings only started punctually on 30.5 per cent of the occasions. In this space, the children interacted with court officers and especially their lawyer, who used this time to speak about the case and prepare their defence. During these meetings, the lawyers treated their clients cordially and courteously and no disparity of criteria between the parties was observed. On some occasions (20% of the juveniles observed), the lawyers were observed to speak only to the parents.

At these meetings, some lawyers were seen to show concern about the children’s future and gave them advice (FNs 12.5, 27.5, 54.4, 66.5 and 79.5) or attempted to calm the family (FN 88.5). In other cases, they attempted to make conversation with the juvenile (in FN 13.5, they chatted about trips and typical dishes from the child’s home country, or about football in FN 123.5). However, other lawyers failed to observe Guidelines and, contrary to paragraph 39, they were not capable of communicating with their clients. They conversed minimally with them, and instead, spoke on their phones or walked around (FNs 19.4, 86.4, 87.4, 105.4 and 105.5). On certain occasions, the family requested the lawyer speak to the juvenile (FNs 64.4 and 65.4). On two occasions (out of 121), it was the juvenile who had to seek the attention of their lawyer (FNs 105.5 and 119.4).

It was also observed that once the proceedings had finished, on some occasions (28.7%), the lawyers did not say goodbye to their clients (i.e. FNs 62.5 and 63.4) or did so negatively (brusquely, coldly, with excessive haste, or they only said goodbye to the parents). In the waiting rooms, the juveniles also interacted with the court officers, who were cordial most of the time. They provided explanations about the need for phones to be switched off or about their location or that of their parents in the courtroom. These officers were willing to resolve any questions on all occasions, although in general, this was not necessary. It is worth noting that on one occasion, the officer was rushed and stressed (NC 16.3), while on another occasion, the officer was seen to roll their eyes in response to a juvenile’s comment (NC 60.3).

Not only was this space shared and used for interactions with family members, lawyers and court officers but, on occasion, also with victims and witnesses. This was especially true of Court A, which had no space reserved for protecting the rights of victims and witnesses or to avoid visual contact with their aggressors. Curiously, although Court B was architecturally designed in such a way that defendants and victims need not coincide in the same space, this separation only occurred occasionally, with both parties usually sharing space in the waiting room. Again, the settings did not seem friendly because they made juveniles feel very uncomfortable and unsafe.

The settings

The courtrooms had several tables put together to form a ‘U’ shape. In the centre were seated the judge and the court secretary, with the prosecutor and the juvenile’s lawyer on either side (or opposite each other). Other professionals were also present, such as the members of the technical team, ⁶ who advised the judge and the defendant on the juvenile’s psychosocial circumstances, and a member of the court office, responsible for calling the accused and the witnesses to the courtroom and for supervising the audio–visual recording of the proceedings. The accused was seated opposite the judge and behind the accused sat the family members. Furthermore, as the trials were public, ⁷ there was also space for other persons (from where the researcher conducted the observations).

The Guidelines state that architectural surroundings can make children very uncomfortable. Even for adults, courthouses can be rather oppressive or intimidating. These settings can be improved by working in a more child-sensitive way (paragraph 122). However, the juvenile courtroom at Court A was very similar to an adult one, with the presence of certain elements such as a raised platform, the emblem of the Ministry of Justice and a lack of windows. In contrast, the room at Court B had no symbols of justice or a witness stand, and it had windows with the blinds up. Regarding the symbolism of the criminal justice system, it should be noted that at Court A, all the legal actors were required to wear gowns during hearings (contrary to paragraph 123). At Court B, however, there was a notice at the entrance to say that gowns were not required (NC 11.9), although some of lawyers opted to wear them (4.8%). One of the observations made in Court B reports the following comment in this respect: ‘gowns aren’t worn here; the juvenile is like one of the family’ (FN 15). Handcuffs were also seen to be used on certain occasions. This could be observed in precautionary measures with young people detained in cells who came to the courtroom through the waiting room accompanied by police officers. In Court A, the juveniles usually arrived in the courtroom in handcuffs, while in Court B, they were usually accompanied by legal professionals, and were only handcuffed in exceptional cases (high-risk cases or those who were thought likely to attempt to take their own life, see FN 23.9).

As regards the environmental conditions, on all occasions, the room was calm and there were few people. On three occasions (out of 129), the hearings were conducted by videoconference. In these cases, added difficulties were observed. The image and sound quality were not good and the delay in the audio was a source of confusion. On very few occasions, the difficulties were so serious that the trial was conducted with the juvenile communicating by telephone, with very poor sound quality (FNs 53.5 and 57.9).

Professional performance

The Guidelines promoting other child friendly actions encourage member states to ensure that the professionals receive appropriate support and training in order to implement adequately the rights of children (section V, l). The professional performance may also contribute to promote a child friendly justice. In this sense we observed that more than two-thirds of hearings were late starting, with this delay reaching between 45 and 50 minutes on occasion (FNs 78.4 and 81.4). When proceedings stated late, inevitably, the trial seemed to be rushed. For example, some hearings lasted only 3 minutes in which reading the charges was almost forgotten (FN 115.7), and in some cases, the charges were not even read (NC 103.9). Nonetheless, this is the exception rather than the rule.

Generally speaking, the cases were well prepared (they knew the facts and the juvenile’s background), although occasionally substantial problems arose. For example, in under a third of the cases, there was a perception of confusion, which was such that on 15 per cent of occasions, mistakes were made with the juvenile’s name or with files. It is also worth noting that in general, the legal actors showed no signs of tiredness, and when this occurred, in the form of yawning or stretching, it was observed at the end of the day or during trials lasting several hours (one lasted 6 hours).

Child friendly environment

The Guidelines recommend that informal and cordial treatment be fostered in interactions with the different actors of the justice system (paragraphs 112 and 124). However, indications of formality remain. Nearly half the time, the juvenile was addressed using the formal Spanish ‘usted’ pronoun, which is not normally used in Spain to address young people. However, despite this formality, the juvenile was greeted cordially at the start of the hearing most of the time. It was also noted that the professionals recalled repeat offenders. For example, in one trial, it was observed that the judge congratulated a juvenile on their proper compliance with a previous sentence (FN 12.9). On another occasion, the juvenile was complimented on their new hairstyle (NC 48.9). Indeed, this approachable attitude was manifest, as, for example, when the prosecutor joked and empathised with the child, using their own child as an example (NC 75.9). However, this was not always true; on occasions, this easy atmosphere was lacking, with the juvenile not being greeted.

Furthermore, inappropriate use of language also impeded an informal atmosphere in the courtroom (contrary to paragraphs 2, 49 and 56). Technical words (jargon) were used in nearly half the cases, even when limitations to understanding were evident. For example, on one occasion, it was observed that the language was not tailored to the needs of two cognitively impaired juveniles, with terminology such as ‘provide consent’ being used, which the children in question clearly did not understand but which was vital to the adoption of the judicial measure (FNs 32.8 and 33.8). On another occasion, it was observed that the juveniles were not clear about the amount of damages they were required to pay, due to the vocabulary used (FNs 44.9 and 51.8). It is important to note that these difficulties were not only experienced by the juveniles; in one of the trials, a witness told the judge they could not understand what was being said due to the language used (FN 96.8). It is also worth noting that the difficulty was not only a question of language but also of speed of discourse, which was frequently too fast to be easily understood. In particular, it was difficult to retain core information when the secretary was reading the charges of which the juvenile was accused.

Nonetheless, and although less frequently, the legal professionals also demonstrated their awareness of the difficulties and attempted to mitigate any language problems. The judges sometimes asked the child on trial whether the language used was comprehensible (‘do you understand what we are talking about?’). Indeed, in two-thirds of the cases, they were given further explanation on matters such as pleading guilty, damages or insolvency (FNs 2.9, 10.9, 26.7, 27.5, 66.7 and 102.7). In another case (FN 40.9), it was explained to the defendant why only he had been summoned despite the offence having been committed by three people, indicating that only he had been recognised. It was also observed that for sentences handed down in voce on the day of the hearing (in case of a plea of guilty), while in Court A, after passing sentence, the judge said ‘I convict you’ (as occurs in the adult justice system), in Court B, the judge said ‘I hold you responsible’.

Dignity

The children should be treated with dignity, and respect is one of the principles of this new paradigm provided for in the Guidelines on child-friendly justice (section C and paragraphs 39 and 40). This research revealed the existence of great sensitivity to the situations of the children. However, unfortunately, other disrespectful behaviours were also observed. As an example of the former, a transsexual defendant on trial was asked what name they wanted to appear in the disposition (FN 35.9). The need to take account of the diversity of the juveniles in the case of non-Spanish defendants was observed, especially in the case of those who did not understand Spanish. On occasions, when the judge realised the defendant did not understand the language, an interpreter was called for (FNs 120.5 and 121.5), and the child was usually asked directly if they understood Spanish properly (FNs 107.9 and 119.9). In these cases, a further professional, the interpreter, was involved. On some occasions, the interpreters acted in a highly competent manner, sometimes translating the entire trial (FN 121.5), while others seemed to be unsure of how to act. On one occasion, the interpreter was observed to ask the lawyer if it was necessary to translate what the defendant said or what the lawyer had said in the waiting room (FN 95.4).

Nonetheless, in a few cases, disrespectful behaviours by professionals were observed, such us improper looks (4.7%) or inappropriate laughters (7%). On one occasion, a prosecutor was seen to look a juvenile up and down with an expression of disdain (FN 15.8). A comment was also overheard when a police officer referred to a defendant’s father as an ‘unpleasant character’ (FN 60.5). Furthermore, professionals were occasionally observed to snort (FN 43.7) or consult their mobile phones during the hearings (NC 15.8, 51.8 and 56.8). Finally, it is worth noting that respect for diversity was not always observed, especially as regards foreign juveniles. On one occasion, when a foreign juvenile left the courtroom, a prosecutor was heard to say, ‘Let him go back to his own country and knock people around there’ (FN 50.9).

Participation of juvenile defendants

As has already been mentioned, child-friendly justice can only be achieved with the participation of juvenile defendants in the proceedings (section A, 32 and 61). Thus, it is essential to listen to the juvenile’s side of the case and take their opinion into account. During the observation sessions, the judges almost always required the participation of the juvenile defendant. Almost two thirds of the time, the juveniles exercised their right to give their opinion of the events and/or proceedings, while in the other cases they refused to speak. It was also observed that the judges mostly encouraged interaction with the children, asking them, for example, if they had understood the charges and the prosecutor’s petition and the written report of allegations. However, despite the judges’ interest in making themselves understood, the children were usually seen to say yes mechanically and almost without thinking. It was observed that one of the judges not only insisted that the children speak and give their opinion but also deliberated with them about who was on their side and what was good for them or not (FN 108.9), or asked them their opinion about which centre they wished to serve their sentence at, as, in the words of the judge, ‘your welfare concerns me’ (FN 104.10).

We observed a special concern to safeguard the juveniles’ right to due process and ensure a fair trial. In Court B, on one occasion, when the juvenile did not voluntarily appear at the proceedings, the judge required the police to bring the defendant to court. The judge explained that she would hold no trial without the presence of the accused, since decisions are taken which impact greatly on their rights and liberties and thus she considered their presence essential (FN 23.9). Moreover, on 25.4 per cent of the occasions, this right to participate was extended to the defendant’s parents, who also expressed their opinion about the events and/or the proceedings. For example, in one case a mother was required to describe the juvenile defendant’s behaviour at home (FN 108.6).

Juveniles and their parents in the courtroom

We also thought it pertinent to observe how the juveniles and their families behaved in the courtroom, to better understand their attitude towards the experience of the proceedings. We observed that they almost always knew how they were expected to behave. Nonetheless, we also observed occasions in which children experienced compromising situations because they were unaware of what to do. For example, in one case, a juvenile did not realise they had to stand up (although this is compulsory in the Spanish proceedings; FN 15.9), and in another, the court officer had to tell the juveniles to keep quiet during the trial (FN 89.9). Certain lack of awareness was often shown by the children in the courtroom, and although, as mentioned above, the court officer usually told the juveniles where they had to sit in the courtroom, only 48.4 per cent of the children appeared to show knowledge of this fact.

On occasions (17.9%), the children seemed to be nervous. In one case, the juvenile’s tone of voice clearly suggested he was very upset (FN 68.7). This nervousness sometimes led to juveniles making spontaneous remarks in their trial (interrupting the judge), for various reasons such as not agreeing with the measure imposed or not wanting their parents to give their version of the facts or proceedings (FN 27.9). During one of the trials observed, the judge told the defendant (a girl) she was very agitated and asked whether they should suspend the hearing until she calmed down (FN 97.9). Furthermore, on two occasions, on leaving the court, the juveniles told the researcher they had been frightened and had expected the judges to wear wigs and gowns like in American films, but in the end, it had not been like that at all (FNs 109.10 and 111.10). However, despite the difficulties of some of the accused, the children were generally seen to engage with the process. For example, they made eye contact with the legal professionals and only a few were seen to pay no attention to their own trial. It is worth noting that, in general, during the observations the experience of the proceedings helped the children to accept their responsibility for the events. On one occasion, a child accused of family violence remarked, on hearing the charges in court, that he was shocked by how he had behaved (FN 103.10).

Moreover, as UN Committee of the Rights of the Child states, the maximum possible involvement of parents or legal guardians in the proceedings is recommendable (paragraph 57, General Comment No. 24). However, parents’ behaviour was sometimes observed to be inappropriate. On one occasion, a father argued with a judge (FN 25.6), and on other occasions, parents complained or snorted, especially when the victim or witnesses were declaring (FNs 46.6, 83.6, 84.6, 88.6, 89.6 and 104.6). Like their children, the parents also interrupted the judge to express their opinion about aspects such as the amount of damages (FN 89.6), to reprimand their child if their behaviour was inadequate (FN 99.6) or to say their child had not committed the offence (FN 43.6). We also observed that some parents were distracted and had to be called to attention, or they sometimes looked around the courtroom as if the process had nothing to do with them, as well as one occasion when a mother did not know if her child had entered the courtroom or not (FN 117.5).

Some parents wanted to intervene on behalf of their children to explain everything in more detail, and others were worried about whether the measure would prevent them from going to work or make them miss a medical appointment (NC 30.6, 40.5, 43.4, 62.5 and 108.6). In contrast, on some occasions, the legal guardians kept out of the trial, especially foreign mothers (Moroccans, specifically) who did not speak the language (FNs 107.5 and 116.4). On one occasion, the lawyer did not let a Moroccan mother enter court, preferring the presence of the defendant’s older brother who spoke Spanish (FN 107.5).

Settings and environment

Against the Guidelines recommendations, the observed waiting rooms do not satisfy the conditions required for juveniles to feel comfortable. As previous research has shown in other countries (European Union Agency for Fundamental Rights (FRA), 2017; Kilkelly, 2008) the spaces are often overcrowded, and the atmosphere is palpably tense as a result of the unsatisfactory conditions of the infrastructure. The defendants, for example, share a space with victim and witnesses, and lawyers cannot maintain confidential conversations with their juvenile clients because there are is no appropriate space for doing so. Waiting to enter the courtroom is frequently a moment of tension for these children. It is a time when they have to speak to their defence counsel, whom in most cases they have just met or do not know well and must then have a conversation which is vital to the outcome of their case in front of a crowd of people (Birckhead, 2010).

Although the courtrooms are somewhat calmer spaces, it was observed that, especially in one of the courts analysed, these spaces still feature many examples of the symbolism of the asymmetric relations between the person on trial and the authorities responsible for administering justice. Thus, although international standards clearly recommend the elimination of these elements that so prominently create a distance and which may intimidate the juvenile defendants, they remain present: the judge on an elevated platform and the juvenile on a lower level, seated on a bench with their parents behind them; the wearing of gowns which reifies the image of the different actors and which makes it impossible for the juvenile to distinguish between the professionals and their respective roles (Benech-le Roux, 2005; Birckhead, 2010). Thus, it seems there are still obstacles to be overcome before the spaces where the criminal proceedings take place are suitable for children.

We were able to observe that children’s privacy is compromised in the waiting rooms. The absence of private spaces makes it difficult to hold a private conversation, which is a crucial issue to prepare a good defence of the case. On the contrary, the judges try to balance in the courtroom the public nature of the principles of criminal proceedings with the principle of privacy proposed in the Guidelines on child-friendly justice. Thus, in general and against the UN Committee of the Rights of the Child recommends (General comment No. 24), the hearings were public but, sometimes, if the best interest of the children or their families justified the contrary, the hearings were in camera (i.e. domestic violence proceedings).

Professionals

During our observations, we were able to verify the performance of courtroom professionals in compliance with the Guidelines. They evidently prepare their cases and are serious in the practice of their profession. They make genuine efforts to adapt what is a professional practice essentially characterised by rigour and formality to a more informal one, tailored to the circumstances of juvenile offenders. Attempts are made to provide additional explanations when the young defendant appears not to understand the ideas being transmitted. The professionals are also observed to treat the children with dignity and cordiality, and, on occasions, great respect for diversity is demonstrated.

However, it is also true that although the professionals are clearly motivated and qualified for their work, inappropriate behaviours occur. For example, the tone used by the legal actors (judges, prosecutors and lawyers) is still excessively formal. On many occasions, they address the juvenile defendants using the formal Spanish ‘usted’ pronoun, legal jargon is not always avoided, and the discourse is sometimes difficult to understand for someone unfamiliar with the world of law, both due to overuse of legal terminology and the excessive pace of speech. As observed by Rap (2013), when the court secretary reads the charges of which the juvenile defendant is accused and on which they must give their opinion, this is a critical moment that the children often find incomprehensible. The secretary reads the charges exactly as they are written in the disposition. These texts contain technical language, using archaic and complex grammatical constructions, and are read at great speed, with lack of interest and little intonation. In short, it is an incomprehensible speech about which the juvenile must present a plea that may condition the outcome of the judicial proceedings.

Foreign juveniles have greater problems in this regard. As suggested in previous research (Naik, 2017), when juvenile defendants lack a good understanding of the language, certain legal safeguards are jeopardised and minority rights are questioned (Goldson and Muncie, 2012).On occasions, these problems extend to foreign mothers who sit through what happens in the courtroom like uninvited guests but who then must, as legal guardians, sign their consent to the decisions taken.

Frequent delays have also been observed. These undermine the quality of the process (Kilkelly, 2008) and could be considered a lack of respect which affects the satisfaction of the children and their families with the justice system since they generally make every effort to arrive correctly on time at court (Greene et al., 2010). On very few occasions, unprofessional and disrespectful behaviours were observed, which generated great tension between the children and their families.

Generally, the judges were perceived to make more effort to tailor their practices to the circumstances, while the other legal actors, prosecutors and lawyers seemed more concerned about technical and legal issues and frequently replicated the practices used in the adult justice system. This is largely because in Spain judges receive better specialised training than all other professionals (Fernández Molina and Rechea Alberola, 2007), and they are (except in rare occasions) only juvenile judges, that is, they do not have to work at the same time in the adult justice system (Fernández-Molina and Bartolomé, 2019).

Finally, it is worth noting that hearings by videoconference, which occur albeit infrequently, compromise, in our view, the right to a fair trial. The technical difficulties they entail generate great confusion among all the professionals. The juvenile defendants, overwhelmed by the situation, are seen to give their assent to everything said to them, whether they have heard or understood it, apparently wishing to put a swift end to a faltering conversation which is incomprehensible to everyone present.