“Children in Conflict with the Law”: Gaps, Challenges and Promising Practices in Criminal Proceedings

[Viktoryia Konashava is a Legal Researcher with the International Commission of Jurists.]

Children who come into contact with the criminal justice system as suspects or accused (often referred to as “children in conflict with the law”) often face significant barriers to the effective exercise of their right to a fair trial, including their right to participate meaningfully in criminal proceedings. These barriers are particularly acute for children from disadvantaged or otherwise marginalized backgrounds, whose experiences are often shaped by additional obstacles, such as language barriers, limited access to quality legal assistance, disability-related communication challenges, socioeconomic disadvantage, and discriminatory practices.

While a comprehensive international and regional human rights legal framework comprising the United Nations Convention on the Rights of the Child (CRC), the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR), the Guidelines of the Council of Europe on child-friendly justice, and European Union (EU) Directive 2016/800 on procedural safeguards for children who are suspects or accused persons in criminal proceedings exists, ensuring the effective implementation of those instruments and the standards they guarantee, remains a persistent challenge across EU Member States.

The findings of the ACCESS Project, based on research conducted between 2024 and 2026, which examined the experiences of “children in conflict with the law” in Belgium, Bulgaria, the Czech Republic, the Netherlands, Poland, and Slovakia, higlighted such a challenge. Through national research, comparative analysis, and transnational exchanges with judges, lawyers, social workers, prosecutors, and other justice professionals, the project identified persistent gaps between legal standards and the realities experienced by children either as suspects or accused within the criminal justice systems of the abovementioned countries.

Drawing on these findings, this post focuses on three procedural safeguards that are essential for protecting children’s right to a fair trial and effective participation in criminal proceedings: the right to a lawyer, the right to information, and safeguards relating to deprivation of liberty. It highlights both implementation gaps and promising practices identified across the six countries.

The Right to a Lawyer

Access to legal assistance is one of the crucial safeguards for children facing criminal proceedings. It forms an essential part of the right to a defence and the broader right to a fair trial, both of which are guaranteed in numerous international and regional human rights law treaties, including the ICCPR (Article 14), the CRC (Articles 12, 37 and 40), the ECHR (Article 6), and the EU Charter of Fundamental Rights (Articles 47 and 48).

International standards require children to have access to a lawyer from the earliest stages of proceedings, including before any questioning by law enforcement authorities. The European Court of Human Rights has stressed that the right to a fair trial must be “practical and effective“, finding that the use of statements obtained without access to legal counsel may irreparably prejudice the rights of the defence.

Effective legal assistance requires more than the formal appointment of a lawyer. The CRC Committee recommends that States provide free and effective legal representation for all children facing criminal charges and ensure that they can communicate confidentially with their legal counsel. Lawyers representing children should also possess specialized knowledge and training. The Council of Europe Guidelines on Child-Friendly Justice recommend that all professionals working for children receive interdisciplinary and specialized training on children’s rights, needs, and meaningful participation. Reflecting these standards, Directive (EU) 2016/800 requires Member States to ensure that lawyers representing children possess specific competence in this field, have effective access to specialized training, or both (Article 20). 

Despite these clear standards, access to effective legal assistance for children in conflict with the law remains uneven across various countries. The ACCESS Project research conducted between 2024 and 2026 has probed the situation in six EU Member States. 

In several jurisdictions, delays in the appointment of defence lawyers continue to undermine children’s human rights. In Bulgaria, for example, children are generally entitled to legal assistance only after they have been formally charged or detained. Because Bulgarian law does not recognize the procedural status of “suspect”, children may undergo preliminary investigative activities without access to legal representation, precisely at a stage when legal support is most needed. A similar concern was identified in Slovakia, where children may be questioned before formal charges are brought against them, without a guaranteed right to have a lawyer present.

Financial barriers also persist. In the Czech Republic, children in conflict with the law have the right to be legally represented from the moment they are heard as suspects or become subject to investigative measures. However, legal aid is not automatically free of charge. Children from low-income families may struggle to meet the eligibility criteria for free legal assistance, and in some cases may be required to reimburse legal costs following conviction.

The research also revealed shortcomings in the protection of confidential communication between children and their lawyers. In Poland, legal provisions allow restrictions on private communication between detained children and defence counsel, undermining defence rights by impeding confidential communications between detained children and their lawyers. In Belgium, children in pre-trial detention typically have only 30 minutes to meet their lawyer before a hearing, with a limited possibility of additional consultation during the proceedings. Such constraints can significantly affect a child’s ability to understand the case, build trust with counsel, and prepare an effective defence.

Despite these concerns, promising practices exist. Belgium requires specially trained youth lawyers to participate in all proceedings involving children, while the Czech Republic, as mentioned above, guarantees mandatory legal representation from the earliest stages of proceedings, namely from the moment a child is heard as a suspect or becomes the subject of an investigative measure. Bulgaria provides particularly strong protections for lawyer-client confidentiality.

The Right to Information

The right to information is a safeguard that enables children to understand the criminal proceedings against them and participate effectively in their defence. International human rights standards require that children be informed promptly of the charges against them, their procedural rights, and the steps involved in the proceedings. 

The CRC Committee has clarified that children should be informed of their rights and the charges against them as soon as possible after their first contact with the justice system. Simply providing written information is not sufficient; the authorities must ensure that children understand the information through clear, age-appropriate explanations. The Council of Europe Guidelines on Child-Friendly Justice call on Member States to provide information in a manner adapted to the child’s age and maturity, using language that is understandable and sensitive to the child’s gender, cultural background, and individual circumstances. Similarly, the EU Directive 2016/800 requires information to be communicated in a child-friendly and accessible manner, tailored to the individual needs of each child (Article 4). 

The right to information also includes free interpretation and translation services for children who do not understand the language of the proceedings, as well as reasonable accommodations for children with disabilities, ensuring that all children can participate effectively and on an equal basis with others.

Despite these standards, the ACCESS Project findings reveal significant shortcomings in how information is communicated to children in practice. In Slovakia, the absence of binding rules on informing child suspects and accused persons means that approaches vary considerably between investigators and judges, with information often delivered in formalistic or technical language that children struggle to understand. Similar concerns were identified in Poland, where research has shown that professionals frequently rely on the same methods used for adults, with limited adaptation to children’s age, understanding, or preferred forms of communication. In Bulgaria, children are typically informed of their rights only once they are formally charged, as national legislation does not recognize the procedural status of “suspect”.

These shortcomings are particularly invidious for children from vulnerable or marginalized groups, including children with disabilities, children facing language barriers, and those from disadvantaged socioeconomic backgrounds, who often encounter additional obstacles to understanding and exercising their rights effectively.

Although implementation gaps remain widespread, some countries have introduced innovative measures to improve children’s understanding of criminal proceedings. The Netherlands uses child-friendly explanatory videos and digital tools to facilitate communication, while Poland has developed age-appropriate communication templates.

Deprivation of Liberty as a Measure of Last Resort

International human rights law and standards unequivocally mandate that deprivation of liberty of a child must be used only as a measure of last resort and for the shortest possible time. This principle is enshrined in the CRC (Article 37), the ICCPR (Article 9), the Council of Europe Guidelines on Child-Friendly Justice, and Directive (EU) 2016/800 (Article 10). 

The CRC Committee has emphasized that no child should be deprived of liberty unless there are genuine public safety or public health concerns, and has encouraged States to establish a minimum age below which children cannot be legally detained. It has also called on States to ensure that all persons under the age of 18 in conflict with the law be dealt with through the child justice system, warning that transfers to adult criminal justice systems may expose children to harsher sanctions and increase the risk of prolonged detention. 

When detention is unavoidable, children must be treated in a manner consistent with their dignity, best interests, and developmental needs. International standards require that children deprived of their liberty be separated from adults (CRC, Article 37) and accommodated in specialized, child-appropriate facilities staffed by trained professionals. Children in detention retain their rights, including access to education, healthcare, family contact, and recreational activities. 

Children deprived of their liberty must also have access to effective legal remedies. International standards require that every child deprived of liberty has prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of their detention before an independent and impartial authority (CRC, Article 37). To prevent arbitrary or unnecessarily prolonged detention, decisions to deprive a child of liberty should be subject to regular judicial review. The CRC Committee has further encouraged the introduction of automatic review mechanisms, particularly in cases involving long-term deprivation of liberty, while Directive (EU) 2016/800 requires that detention decisions be reviewed at reasonable intervals, either automatically or at the request of the child or their lawyer (Article 10).

Equally important is the obligation to prioritize alternatives to detention, such as diversion, mediation, restorative justice programmes, community-based supervision, and educational measures. The CRC Committee has emphasized that diversion should be the preferred response in the majority of cases involving children in conflict with the law.

Despite these clear standards, the ACCESS Project research has found that deprivation of liberty continues to be used in ways that raise significant child rights concerns across several EU Member States.

Particularly concerning are legal mechanisms that allow children to be subjected to adult criminal justice frameworks and adult sentencing regimes. In the Netherlands, children may be subjected to a PIJ measure, which can result in deprivation of liberty for up to seven years and, in some cases, be converted into an adult treatment order (TBS) with no fixed maximum duration. Similarly, in Belgium, children aged 16 and over accused of serious offences may be transferred to adult criminal courts through the dessaisissement procedure, potentially exposing them to adult sentencing frameworks and weakening child-specific safeguards.

The research has also highlighted a less visible but equally concerning phenomenon: children may be deprived of their liberty through family law, welfare, educational, or protective measures rather than through formal criminal proceedings. 

In countries such as the Czech Republic and Slovakia, children suspected of offending may be placed in closed educational or re-education institutions under family law frameworks. Although these placements are often presented as protective or educational measures, they can involve restrictions on liberty comparable to detention while offering fewer procedural safeguards than those available in criminal proceedings. Particular concerns arise where placements can continue for extended periods without meaningful review, or where children with psychosocial disabilities are placed in psychiatric institutions under protective measures that may have no clearly defined maximum duration. Such practices risk undermining the principle that deprivation of liberty should be used only as a measure of last resort and for the shortest possible time

The research has also identified persistent failures to ensure the separation of children and adults in detention settings. In Poland, children held in pre-trial detention are not always separated from adult detainees, and in the Netherlands children may be placed alongside adults while in police custody, immediately following arrest. Concerns were also raised in the Czech Republic, where no explicit legal prohibition prevents children from being accommodated with adults in certain psychiatric institutions.

The use of alternatives to detention remains inconsistent. Although restorative justice and diversion measures are recognized in law in several jurisdictions, resource constraints, limited availability of community-based programmes, and insufficient use of individual assessments often result in continued reliance on custodial responses. These shortcomings disproportionately affect children from disadvantaged backgrounds, who are frequently overrepresented in detention settings.

Despite these serious human rights concerns, the research has identified a number of promising practices aimed at reducing the use of detention and strengthening community-based responses. In Belgium, the law explicitly requires detention to be used only as a measure of last resort and only after alternative measures, including restorative, educational, and supervisory interventions, have been considered. In the Netherlands, children may be released from pre-trial detention subject to conditions such as counselling, school attendance, or participation in structured support programmes. Bulgaria also provides for a range of alternatives to detention, including parental supervision, school-based supervision, and oversight by specialized child protection professionals. In the Czech Republic, the Probation and Mediation Service promotes the use of family group conferences, bringing together children, families, and relevant professionals to identify solutions tailored to the child’s needs and circumstances.

Effective oversight is equally important in safeguarding the rights of children deprived of liberty. In Slovakia, recent legislative reforms have strengthened independent monitoring by granting the Ombudsperson the authority to supervise prisons and other facilities where children may be deprived of their liberty, helping to promote accountability, transparency, and respect for children’s rights.

Several countries have also introduced safeguards to improve detention conditions. In Belgium, children deprived of liberty are accommodated in specialized youth institutions with access to education, healthcare, and family contact. In the Czech Republic and Belgium, strong legal protections require the separation of children from adult detainees in most circumstances.

Conclusion

There is a persistent gap between legal standards and the realities experienced by children in conflict with the law in criminal justice systems across the EU. While international and European frameworks provide strong safeguards relating to access to a lawyer, the right to information, and deprivation of liberty, their implementation remains uneven in practice. At the same time, research has identified a range of promising practices demonstrating that child-friendly, rights-based approaches are both achievable and effective.

Ultimately, safeguarding children’s rights in criminal proceedings requires more than formal compliance with legal standards. It demands sustained investment in specialized training, child-sensitive communication, effective legal assistance, individualized support, and community-based measures that prioritize rehabilitation. Bridging the gap between law and practice remains essential if all children in conflict with the law are to exercise their right to a fair trial and meaningful participation in proceedings that may have life-long consequences for them.

For a more detailed analysis of these issues, see the report published in June 2026 by the International Commission of Jurists (ICJ), Safeguarding the Rights of Child Suspects and Accused in Criminal Proceedings: Compendium of Good Practices Across the European Union. The publication brings together findings from six EU Member States and examines a broader range of issues affecting children in conflict with the law, including access to legal assistance, the right to information, deprivation of liberty, discrimination, and the treatment of children below the age of criminal responsibility. It identifies both persistent implementation gaps and promising practices, providing practical guidance for strengthening child-friendly justice systems across Europe.