"We cannot solve our problems with the same thinking we used when we created them." This universally valid adage from Albert Einstein can also be well applied to the situation of legal proceedings that involve children and young people.
In 2015, the canton of St. Gallen recognised that entirely new concepts would be needed if they were to create solutions that were appropriately effective and enduring. Since then, the various departments have pursued a pioneering approach that also led to the publication in June 2021 of the ‘Recommendations for child-friendly legal procedures in the Canton of St. Gallen’ (german). These voluntary recommendations, which are aimed at professionals working at responsible authorities, courts and institutions, lay out how to pursue and implement legal proceedings in St. Gallen in a manner that is optimally child-friendly.
Every year in the canton of St. Gallen and across Switzerland, numerous children and young people are involved in legal proceedings. For example, children and young people are involved in three quarters of family law cases. And every year, it is estimated that 3,500 children and young people in the Canton of St. Gallen are affected in some way by child protection measures from the child and adult protection authorities (KESB). Many thousands of minors are involved in criminal proceedings or are in contact with the police, juvenile courts or public prosecutor's offices. They may also be involved in school or migration-related legal proceedings. Every year, around 100,000 children across Switzerland are involved in legal processes in some way.
The recommendations of the Canton of St. Gallen are based on the principles and guidelines of the Committee of Ministers of the Council of Europe for Child-friendly Justice and on the UN Convention on the Rights of the Child, Article 12 of which states that children and young people must be involved in all matters that concern them.
Good for children, good for the canton
What has motivated the momentum in this area at the Canton of St. Gallen over the last five years and into the future? Firstly, the recommendations are intended to create overview and transparency and in particular to show the openness towards child-friendly justice at the canton. Alongside, the canton’s “child protection strategy” is aimed at promoting child-friendly procedures and strengthening children's rights. The outcome of these efforts is improved protection for children and young people, while the associated social and financial problems within the canton are avoided to the greatest possible extent.
The Ombuds Office Children's Rights Switzerland welcomes the child protection strategy and the focus on children's rights that is being pursued at the Canton of St. Gallen, and supports its recommendations. The canton has been doing valuable work. On the example set by St. Gallen, the Ombuds Office Children's Rights Switzerland has derived a 5-phase procedure that can also serve as best practice for other cantons and authorities.
A child-friendly legal system over five phases
Phase I – Initialisation: Conviction is the first step
In the first phase, decision-makers at institutions or in political office are sensitised to the topic. This gives them a better understanding of what is meant by a child-friendly legal system and they gain the conviction that
- children are protected effectively and learn self-efficacy through the implementation of child-friendly measures.
- children are strengthened when they are included as active participants; they learn resilience, are better able to cope with even the most difficult situations and in this way grow to become problem-solving adults.
- children can leave their self-perception as victims behind and do not have to experience helplessness and powerlessness.
- children deserve to be informed about issues that affect their lives.
Children and adolescents that are assisted and guided in this way mature into empowered adults who have learned how to find solutions to the issues in their lives. From the health, criminological and economic points of view, the knock-on effect for society is enduringly positive. If the children and young people that live in a canton benefit from such measures, the canton also benefits. The second phase begins when this cause-and-effect principle has reached and convinced enough of the relevant stakeholders.
Phase II – Conception: What is the status quo?
St. Gallen initiated the second phase in 2016. With its ‘Child Protection 2016 to 2020’ strategy, the canton began to focus in earnest on procedures that are keeping with the principles of children's rights. First, there was an analysis of the current situation. To this end, an interdisciplinary working group was established, consisting of experts from the following institutions:
- Social welfare office (Head)
- Youth advocacy
- Youth services of the canton police
- Cantonal court
- Child and Adult Protection Authority (KESB)
- KESB supervisory body
- Preventive medicine
- Legal service of the education department
- The public prosecutor
This approach was deemed to be valuable as it allows different perspectives and experiences from real-life application to flow into the analysis and also highlights any issues at the interface.
In addition to the various stakeholders, it is also important that a range of legal areas are properly embedded. Here too, we recommend the example of St. Gallen as best practice. When establishing the working groups, the canton made sure to include the following legal areas.
- Child protection
- Family law (separation and divorce)
- School law
- Juvenile criminal law (victim and perpetrator)
- Criminal law (victim)
In this composition, the working group, which is headed by the Office for Social Affairs, was able to prepare a comprehensive analysis of the current situation and target situation of children's rights in the canton – before, during and after legal procedures. It was also possible to identify gaps in the provisions of the European guidelines. Alongside organisation-specific measures, in 2018 the working group decided that joint recommendations on child-friendly procedures should be drawn up for the responsible authorities, courts and institutions in the canton.
The fruitful output of this phase was thanks on the one hand to the cooperation between the various involved parties, who were able to provide detailed and meaningful feedback on the basis of questionnaires. On the other hand, there was a positive interdisciplinary exchange that was considered vital for the subsequent practical application. Moreover, it was possible to identify clear responsibilities, meaning that no topic went unexplored.
In the case of St. Gallen, the working group received technical support from the outset from the association Kinderanwaltschaft Schweiz (Guardian ad litem service Switzerland). The Ombudsman's Office for Children's Rights (OSKR CH), which began service in January 2021 and functions as an interim solution until the introduction by the government of a permanent body, was created by the Verein Kinderanwaltschaft Schweiz following a motion from Ruedi Noser for an ombud’s office for children's rights (french). The foundation was made possible thanks to the generous support of Zurich Insurance and the Zurich Foundation. Over the coming years, the Swiss government and various cantons, including the canton of St. Gallen, will also lend their support this model/pilot project, which is aimed at preventing and closing gaps for children, young people and professionals.
Since 2021, as an independent foundation under private law, we have served as a replacement for the Kinderanwaltschaft Schweiz (Guardian ad litem service Switzerland) in the area of services for professionals and legal advice for children and young people. Henceforth, professionals in the responsible authorities, courts, administrative office, the juvenile justice system, public prosecutor's office, the police, school authorities, medical institutions and other institutions overseen and commissioned by the cantons will receive professional support directly from us towards the establishment of child-friendly procedures. We are also happy to support them in measures to raise awareness among stakeholders. We provide general and case-specific information that highlights the benefits not only for children and young people but also for the cantons. Policy-makers are likewise involved in a number of ways, and the importance of the topic is being communicated to numerous other interested groups.
Phase III – Communication: The objectives have been set
With the political support of local governments, the recommendations and measures developed by the working group will be consolidated and communicated via a media release. This will mark the beginning of Phase 4.
Phase IV – Implementation: Learning by doing
The recommendations and measures will be disseminated by means of follow-up projects such as professional development and training as well as the development of work tools, which are intended to be anchored as well as disseminated by the professionals in the field. In such a way, it is hoped to make the application of these principles a matter of daily business.
Phase V – Consolidation and reporting: Making the path permanent
The applications have become a part of the daily routine and the situation for children and young people is greatly improved. The final phase serves to anchor the recommendations wherever they are necessary and meaningful, be it in cantonal laws or in ordinances. From here, the professionals and specialists report back on their experiences. Feedback from the children themselves is also a source of valuable advice and information on where action is still required. Here, the ombud’s office has an important role to play: Children and young people are actively informed about their rights by experts and their attention is drawn to the Ombuds Office Children's Rights Switzerland, and in turn the Office receives important information from children and young people with regard to gaps in the implementation.
The data base on how often and for which issues children and young people make use of our advisory services will provide a strong basis for ongoing practical analyses. Ideally, this would provide the basis for an annual report for the State Council and related experts. It goes without saying that this would be confidential and used exclusively for the improvement of application practice.
Reinforcing children's rights protects the child
With our expertise and thanks above all to the crucial financial assistance for the model/pilot project by the canton of St. Gallen, it will be possible to provide close accompaniment in phases III to IV and to continue to make our services available to all interested professionals. St. Gallen is assuming a role model function across Switzerland with regard to the implementation of child-friendly justice and is enabling and empowering children and young people to build up their resilience through active participation.
The longstanding work of the Kinderanwaltschaft Schweiz has spread awareness and acceptance of the Council of Europe's guidelines for child-friendly justice. On the basis of this important preliminary work, we at the Ombudsman's Office for Children's Rights Switzerland will support specialists and politicians in the implementation of children's rights. This can be in the same manner as the five-phase procedure pursued in St. Gallen or through more targeted advice and support.
If procedures and processes are configured in a manner that is child-friendly, the subsequent decisions and measures are fundamentally more understandable and meaningful for those affected, while the intended effects are more enduring.
Strengthening the child by safeguarding children's rights has the effect of protecting children and young people and, as such, offers new solutions to social problems.