International Perspectives on Child-responsive Courts

international journal of children’s rights 26 (2018) 251-277 <UN> © jill duerr berrick et al. 2018 | doi 10.1163/15718182-02602011 This is an open access article distributed under the terms of the prevailing CC-BY-NC license at the time of publication. brill.com/chil T HE I NTERNATIONAL J OURNAL OF C HILDREN’S RIGHTS International Perspectives on Child-responsive Courts Jill Duerr Berrick,a Jonathan Dickens,b Tarja Pösöc and Marit Skivenesd a) University of California, School of Social Welfare, Berkeley, usa [email protected] b) University of East Anglia, School of Social Work, England, uk j[email protected] c) University of Tampere, School of Social Sciences and Humanities, Finland tarj[email protected] d) Corresponding author: University of Bergen, Department of Administration and Organization Theory, Norway [email protected] Abstract Child friendly justice and access to justice for children are explicit concerns for the European Union, the Committee on the Rights of the Child, the Council of Europe and the Child Rights International Network. This study examines court systems as child-responsive by eliciting the views of judicial decision makers on child protection cases (n = 1,479) in four legal systems (England, Finland, Norway and the usa (represented by California)), based on an online survey. In this paper, we asked judicial officials who have the authority to make care order decisions how they view the childfriendliness of the courts. We presented them with six statements representing standard features of child responsive courts. Findings show that there is considerable room for improving both structure and practice of the court proceedings, for example the use of child friendly language and child-sensitive time frames. There were variations across states, and some variation across type of decision maker. Implications for the development of education and training about the opportunities for children’s engagement are considered. Berrick ET AL. international journal of children’s rights 26 (2018) 251-277 <UN> 252 Keywords child friendly courts – child participation – child protection decisions – cross-country comparisons Introduction Courts or court-like bodies, such as independent tribunals or panels, often serve as decision-making bodies when children’s well-being requires outside intervention, when children require involuntary separation from their parents due to child maltreatment, or when children may be beyond their parents’ control. In some nations, these court or administrative bodies might be variously named dependency, juvenile, or family courts. The decisions themselves may be referred to as care order, dependency, or removal determinations (Burns et al., 2017). Decisions such as these, typically made under grave family circumstances, are highly consequential for all family members and often the distress for the children is sincere. When the Council of Europe was preparing its Guidelines on Child Friendly Justice (Council of Europe, 2010), it undertook consultation with children and young people regarding their experiences of the justice system (covering criminal, family and child protection courts), and found a high degree of mistrust (Kilkelly, 2010). Furthermore, shortcomings such as ‘intimidating settings, lack of age-appropriate information and explanations, a weak approach to the family as well as proceedings that are either too long or, on the contrary, too expeditious’ were highlighted (Council of Europe, 2010: 7). Children who are at the centre of these child protection judgments may or may not be engaged as agents in the decision-making process. According to the u.n. Convention on the Rights of the Child (uncrc), however, children’s views of their circumstances should be taken into account. Article 12 states: ‘Children shall 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’. But what does it mean to be heard, are courts considered child-friendly, and how do courts vary as childresponsive settings across varying systems? Guidelines for the implementation of Article 12 suggest nine conditions that are necessary to fulfil participation rights for children (un Committee on the Rights of the Child, General Comment 12 (2009), #134). These include processes that are (1) transparent and informative; (2) voluntary; (3) respectful; (4) relevant; (5) inclusive; (6) supported by training; (7) safe and sensitive to risk; (8) accountable; and (9) child-friendly. The Committee on the Rights of the Child offers the following recommendations for achieving a child-friendly context: 253Child friendly courts international journal of children’s rights 26 (2018) 251-277 <UN> environments and working methods should be adapted to children’s capacities; adequate time and resources should be available to ensure that children are adequately prepared and have the confidence and opportunity to contribute their views; consideration needs to be given to the fact that children will need differing levels of support and forms of involvement according to their age and evolving capacities. Because judicial decision makers preside over the courtroom setting in care order proceedings, their views about the child-friendly aspects of courts are highly relevant. We presented judicial decision makers in four countries ( England, Finland, Norway, and the u.s.a. (California)), with six statements regarding features of child responsive courts or child-friendly courts (n = 1479). This paper examines between-country similarities and differences in their views of their courts as child friendly. It also examines whether there are differences between different judicial actors (e.g., judges versus lay members or experts) regarding their perspective on courts as being child friendly (cf. Liefaard, 2016). In the following sections, we outline the debates and research on the involvement of children in court proceedings, suggestions on how to improve child friendliness, and what children themselves believe should happen. The contexts of the four countries under study are then presented, followed by the research methods and findings. The discussion and conclusion finalise the paper. 1 Benefits and Hazards of Children’s Participation in Courts In addition to children’s rights to participation, a body of literature from the fields of child maltreatment prosecution to divorce law suggests a range of benefits that accrue to children when they participate in court processes. Because of their opportunity to give voice to their views and perspectives, children may feel empowered in an otherwise disempowering process (Gal and Duramy, 2015; Weisz et al., 2011). Court processes and children’s family circumstances may feel chaotic and confusing, but participation may offer children a modicum of control from which they would otherwise be excluded (Cashmore, 2002; Thomas and O’Kane, 1999), and a sense of validation of their feelings, their experience, and their wishes (Jenkins (J.), 2008; Parkes et al., 2015; Strandbu et al., 2016; Strandbu and Thørnblad, 2015). It may also help children see their future as they help to craft it; another indication that they may experience agency in shaping their own fate (Kendall, 2010; Vis and Fossum, 2013). Including children in the courtroom may force the adult actors to make more clear their actions and intentions, and therefore the processes and outcomes for children (Lindboe, 2013; Pitchal, 2008; Vis, 2014). In some nations Berrick ET AL. international journal of children’s rights 26 (2018) 251-277 <UN> 254 where children of colour are over-represented in child protection proceedings, benefits may be especially pronounced. In the u.s., for example, African American and Native American children are two and three times respectively more likely to experience a care order at some point during childhood, compared to European American children (Wildeman and Emanuel, 2014). These disproportionate contacts with the justice system, coupled with disproportionate contact with other justice systems in the u.s. (e.g., the criminal justice system), may be perceived as unfair. Offering children an opportunity to experience the dependency courts may help children view their own circumstances and court processes that direct their families as just (Block et al., 2010). The putative benefits of children’s direct participation in court are countered by important concerns. The topics discussed in courts in these matters relate directly to serious difficulties in the family. Whether children should be asked to state their views about their families in front of parents is questionable. In particular, if allegations of abuse or neglect are being discussed it might be frightening or dangerous to ask children to speak out about their experiences with the alleged perpetrator in the same court room (Jenkins (J.), 2008; Hobbs et al., 2014). Relatedly, ample evidence suggests that many children who have been maltreated by their parents or caregivers want to continue living with them (Block et al., 2010; Vis and Fossum, 2013); as children try to determine what is best, they may be conflicted about describing the circumstances of their family, and may be especially conflicted about knowing what they want for their future. In fact, the demands of the courtroom, or at least the expected demands and the context of court, may increase children’s trauma or symptoms associated with post-traumatic stress disorder (ptsd) (Jenkins (J.), 2008). Judicial actions may also be confusing; the language used in the courtroom may be foreign to a child’s ear and the actors in the room may be unfamiliar (for a review, see Cashmore, 2002). And although some argue that participation in court may increase children’s understanding of the process and the outcome, these assumptions may prove false for young children or children with developmental disabilities who are unable to comprehend the meaning or the weight of the questions they are being asked. In the end, if the ruling requires children’s separation from their parents, children may feel guilt for having been implicated in splitting up the family (Vis and Fossum, 2013). Importantly, the same argument that suggests children’s participation may be especially beneficial for children of colour, could be false. If court proceedings are neither fair nor perceived as fair, minority children’s experience of power and control, and their ultimate considerations about a fair society, may be fundamentally compromised by their direct witness of the proceedings. 255Child friendly courts international journal of children’s rights 26 (2018) 251-277 <UN> There may be advantages and disadvantages to children who participate in court, but the courts themselves may also be improved settings because of children’s engagement. Child participation may be considered one of several types of “therapeutic jurisprudence”. Barbara Atwood defines therapeutic jurisprudence as ‘the study of law as a therapeutic agent’ (Atwood, 2003). A therapeutic justice approach allows parties a voice and validation that their concerns have been heard (Perlmutter, 2005). Similar to “drug courts”, or “mental health courts”, these specialty courts are designed to serve a therapeutic and rehabilitative function as much as they are designed to administer a just solution. Engaging children may be seen as one form of a therapeutic response to extreme family difficulty. Some argue that the presence of children in a court room also helps to keep a judge’s focus aligned with the needs and interests of the child (Khoury, 2010). As such, some suggest that the quality of judicial decision making may be improved (Jenkins (D.), 2008). But including children in the court room may bring complications (Bakke and Holmberg, 2014). It may be administratively inconvenient, it may require that actors behave differently than they would otherwise, and it may be more time consuming if judicial actors are required to translate the proceedings for younger ears (Krinsky and Rodriguez, 2006). Some argue further that the u.n. Convention does not require children’s direct participation. In California, for example, all children are assigned an attorney to represent their interests, and in England, all children are assigned a lawyer and a children’s guardian (a social worker). In Norway and Finland there is a spokesperson arrangement (Enroos et al., 2017) (see below for more details of the arrangements in the four countries). These safeguards, one might argue, assure that children’s views are represented, though indirectly, in court (Edwards and Sagatun, 1995). The indirect representation of children tends to vary from representing children’s views and wishes to the guardian’s or spokesperson’s own view of a child’s best interest, as pointed out by Bilson and White (2005) in their comparative analysis. 1.1 Strategies to Improve Children’s Experience in Court Given that the introduction of children into court processes might bring new challenges to the structures and actors of court, a number of strategies might be considered to ensure that children’s experiences are generally beneficial. Judges, lawyers and other actors may need training to learn effective interviewing techniques and appropriate alternative language customised to children’s age and developmental capacities (Jenkins (D.), 2008). The courtroom structure may also need to be re-considered. Some judges speak with the child Berrick ET AL. international journal of children’s rights 26 (2018) 251-277 <UN> 256 in chambers – an environment considered more informal and less intimidating (Bridge, 2010; Kendall, 2010). Certain accommodations may be required in some country contexts to ensure that the parents’ and their attorneys have access to the information provided by the child outside of the courtroom (e.g., the conversation may be audio-taped or transcribed and shared, attorneys may be required to submit questions in advance for approval by the parents’ attorneys, consent from parents’ attorneys may be required (Kendall, 2010)). Other strategies to elicit the child’s voice might include a submitted written statement or a video testimony (Pew Commission, 2004). Still other approaches might include a sheltered space (e.g., sitting behind a screen) so that the child is in the court room, but buffered from direct contact with parents who may have harmed the child (Jenkins (D.), 2008). In some courts, therapists are assigned to help the child process the experience before and after a court appearance (Jenkins (D.), 2008). Children may be invited to bring a support person with them into the court room (Khoury, 2010), or they may be invited to bring a comfort item (e.g., a stuffed animal/teddy bear), to offer a modicum of support (Judicial Council of California, 2001). The state of California has, in some ways, been at the forefront of developing court practices that might be considered child-friendly. In 1999, San Francisco developed a specialised children’s waiting room in their court house so that children could wait for their hearing in a comfortable room equipped with art supplies, a television and comfortable furniture (Lynem, 1999). Since then, California state law was amended to require all new court construction or efforts to remodel courthouses to include a children’s waiting room (Judicial Council of California, 2001). In several courthouses, all (young) children are given a new, stuffed animal when they arrive so they associate a pleasant, comforting item with their arrival (Judicial Council of California, 2001). And social workers and foster parents are encouraged in some jurisdictions to bring the child to court in advance of the hearing so that the child becomes familiar with the building, the processes, and the procedures of the court environment (Judicial Council of California, 2001). The eu has been instrumental in developing detailed guidelines for ensuring child-friendly justice in dependency proceedings (fra, 2015; Leifgaard, 2016). These include protocols regarding the right to be heard, right to information, right to protection and privacy, and non-discrimination. Suggestions for training for professionals, and strategies to promote cooperation, are also provided. The developing literature on child-friendly court rooms is fairly consistent in suggesting that even adapted courts may not be appropriate for all children or all circumstances. Children’s age and development should always be at the forefront of decisions regarding the benefits and harms that might accrue to the child (Gal and Duramy, 2015; Khoury, 2010). Significant evidence suggests 257Child friendly courts international journal of children’s rights 26 (2018) 251-277 <UN> that developmental delays are prevalent among the foster care population (e.g., Leloux-Opmeer et al., 2016); as such, children’s capacities for managing the court context may vary significantly. Children’s wishes should also be taken into consideration (Khoury, 2010). If children would prefer not to participate, a requirement to do so might be especially problematic. Relatedly, participation in court must be weighed against other tasks or activities of import to the child (Home at last, 2006). Children’s school attendance or participation in important extra-curricular activities may be more valuable to the child; engaging the child as a decision maker in determining whether they go to court maybe as important as engaging the child in court. And some court hearings may be more important for children’s attendance than others (Khoury, 2010). For example, review hearings focused on children’s needs in care or emancipation hearings to plan a youth’s transition out of care might be especially important for children’s engagement. There is widespread agreement that children who participate in court will need transportation, supervision (wait times may be lengthy), and support in order to be engaged actors (Khoury, 2010). In Norway, a model labelled “children in mediation” is used in custody cases including high conflict cases, and examinations show that involved children report positive experiences with participation (cf. Strandbu et al., 2016). There is also a model called “children’s houses” (Barnehus) developed in Iceland and implemented in Norway, Sweden, and Denmark, with a child-centric approach to criminal cases involving sexual abuse or violence towards children (Bakketeig et al., 2012). Testimonies and evidence are collected in a child-friendly environment by inter-disciplinary teams, trained to speak with children who have been exposed to traumatic events. The American Children’s Advocacy Center (cac) and the forensic units for children and adolescents in the university hospitals in Finland (Julin, 2017) have a similar approach. 1.2 Children’s Views about Court Participation Some studies have included children’s perspectives on court participation. Studies conducted in the u.s. largely suggest that most children do not regularly attend hearings; those who attend do not typically participate actively (Khoury, 2008; Krinsky and Rodriguez, 2006; Pitchal, 2008). But some children want to be involved. Children indicate that they would like to be invited to court (Weisz et al., 2011), and that they want to be heard (Quas et al., 2009). In one study, children were notified of their court hearings and were invited to participate (Quas et al., 2009). One-fifth of children regularly participated; onethird never did so. Among the children who attended court, most indicated that attendance was helpful. The views of children who attended but said nothing during court were similar; they too valued the experience. These children experienced low levels of stress associated with attendance, though they Berrick ET AL. international journal of children’s rights 26 (2018) 251-277 <UN> 258 expressed an interest in preparation prior to court so that they might better understand the process and the language employed. Children who did not attend court were asked the principle reasons for their disengagement. One-fifth indicated that court was too disruptive to their other routines – particularly school activities – and one-quarter indicated that they felt no one would listen to their perspective. In another study of children ages 8–18 years, children who attended court in a county in the Midwest region of the u.s. were more likely than children who did not attend to view the judge as fair (Weisz et al., 2011). There are only a handful of studies on children´s views about participation in Norwegian child protection cases or family conflict cases. Strandbu et al. (2016) examined children´s experiences in 217 family conflict cases in which the “children in mediation” model was used. The children largely reported positive experiences, independent of conflict level and family problems, and children recommended others’ participation as well. In England, it is very unusual for children to attend and give direct testimony in “family proceedings” hearings (that is, “public law” child protection hearings and “private law”, dealing with divorce and separation, parental disputes). As mentioned above, in child protection cases, children’s participation is through representation by their lawyer and their children’s guardian (discussed further in Section3 below). Furthermore, most children involved in public law proceedings are simply too young to play a direct part (Masson et al., 2008). Given this context, it is not surprising that there is little research on children’s direct participation in care proceedings, although there is considerable research on care proceedings more generally (e.g. Family Justice Review 2011, Masson et al., 2017). There is also research on related settings where children’s participation is more likely. For example, it is a legal requirement that all children in care have regular reviews, although these do not involve lawyers and are not held at court. Typically, they are held in the child’s foster home or a social work office. The expectation is that children who are old enough should attend at least part of these meetings. Participation increases with age, and although many of the young people say that they do not really enjoy the meetings, they do tend to say that attendance is worthwhile (e.g. Dickens et al., 2015). 2 The Four Country Contexts for Child-friendly Courts This study takes place in four country contexts that are known for their distinctive welfare states, child welfare systems, and of course significant differences in demography of their resident populations (Berrick et al., 2015). Other authors have characterised Finland and Norway as “family-service” oriented child 259Child friendly courts international journal of children’s rights 26 (2018) 251-277 <UN> welfare systems, and England and California as “risk-oriented” (Gilbert et al., 2011). In England, as described above, it is very unusual for children to attend and give direct testimony in family proceedings, but this position has been under review in recent years, and particularly since 2014. Children and other vulnerable witnesses regularly give evidence in criminal cases (in youth and adult courts) and there are well-established procedures to enable this (e.g. prerecorded evidence, giving evidence behind screens, use of video-links). The current thinking, from a judge-led working group that investigated the matter in 2014–15, is that the family courts could usefully adopt suitably modified versions of these processes (Vulnerable Witnesses and Children Working Group, 2015). These recommendations have been rejected by the government on cost grounds; and the proposals focused more on the private law cases than the public ones. In public law care proceedings, the “dual representation” system for children’s representation, through their lawyer and their children’s guardian, is generally held in high regard (Family Justice Review, 2011). All children who are subject to care applications are parties to the proceedings, in their own right (Children Act 1989, s. 41). As such, they are entitled to a lawyer (paid for out of public funds), who will represent them in court. They are also entitled to a children’s guardian, who is a social worker, employed by a national body called Cafcass (Children and Family Court Advisory and Support Service). Legislation emphasises that local authorities and the courts must take account of the child’s wishes and feelings, in the light of their age and understanding (Children Act 1989, ss. 1, 22). The children’s guardian is required to report to the court on the child’s wishes and feelings, but to recommend according to his/her assessment of what will best safeguard the interests of the child. The lawyer represents his/her client’s views and wishes. Given that the majority of children involved in care proceedings are aged under five (Masson et al., 2008), this usually means that the lawyer will follow the instructions given by the children’s guardian. If the views of older children are different from the recommendation of the children’s guardian, then the child can, in law, instruct the lawyer to argue for what they want, and the children’s guardian will be left to represent themselves and their assessment. In Finland, the u.n. Convention on the Rights of the Child (crc) as well as principles for child friendly-justice defined by the Council of Europe (Childfriendly Justice, 2010), frame the present approach to children’s participation in courts. Children may come to the court for issues related to family law (e.g. custody disputes), criminal offences and care order decisions and they will be met either by civil or administrative courts. In every case, a child should be met according to the principles of child-friendly courts. Despite the recognition of those principles, there is still a common view that children should not Berrick ET AL. international journal of children’s rights 26 (2018) 251-277 <UN> 266 examined the mean values for each group of decision makers to see if there is variation between them, and although there are some differences they are not big enough to demand a separate analysis (cf. Table C in appendix). This sample of judiciary decision makers includes a majority of female court decision makers (56 per cent). The median age of all court decision makers is between 46 and 55 years. The judges, expert members and lay persons/magistrates typically have a university degree – ba, ma, jd, or PhD; lay persons/ magistrates are, on average, somewhat less educated than other decision makers. 4 Results Overall the findings show that there are considerable differences between legal systems. Figures 1–6 below show the differences in mean scores by country and total. Judicial decision makers generally consider that children’s rights to express their views are followed in their courts. The mean score across all four countries in response to this question is 3.73 (where 5 is strongly agree). Respondents in California are significantly more likely to respond favourably to this question (mean value of 4.49), as shown in Table1 below (cf. Table B in Appendix), compared to the other three countries. Finland (mean value of 4) scores significantly higher than Norway (mean value on 3.7) on this statement. When asked whether care order proceedings are conducted in a child-sensitive time frame, the mean score across all countries in response to this question is 3.3, indicating that more agree than disagree. However, there are significant country differences, with Finnish respondents being less likely to indicate that court proceedings are conducted in a child-sensitive time frame (mean score 2.7) and English respondents scoring highest (mean value 4). The usa and Norway are in between (mean value 3.5 and 3.3 respectively). There are significant differences between the Nordic countries and between England and the usa (cf. Table B). On the statement that the courts offer a “child friendly” environment, the mean score across countries is 3, the lowest of all total scores across all questions. California judicial officers score significantly higher than the others on this statement (mean score of 3.5), followed by Norway (mean score 3), Finland (mean score 2.6) and England (mean score 2.2). The difference between England and Finland is not significant, nor the difference between Norway and Finland. However, Norway differs significantly from England and the usa. Asked about the use of “child friendly language”, the mean for the total sample was 3, however, English and California courts are distinct in their 267Child friendly courts international journal of children’s rights 26 (2018) 251-277 <UN> perceptions of how they use “child friendly” language. In California, the mean score offered by judges was 3.6 compared to a mean score of 2.3 among English judges. Norway and Finland were in between with respectively mean scores of 3 and 3.4. The country responses are significantly different between all countries, except for Finland and usa. Judicial decision makers across all four countries responded similarly (no significant differences) when asked about whether statements by children are collected in a child friendly manner; in general, judicial decision makers were modestly inclined to indicate that statement-gathering was conducted in a child friendly manner (average 3.6). Finally, the English judges were significantly more likely than judicial decision makers in other countries to indicate that children’s rights serve as the paramount frame for decision making, with a mean score of 4.5 compared to Finland with a mean at 3.8, Norway with a mean at 4, and, usa with a mean at 3.9. 4.1 Differences among Judicial Actors? As for differences between the various judicial actors in each country, the only significant differences (at one per cent level) were in Norway (cf. Table C in Appendix). Norwegian judges were more positive in their assessment of the question of children’s right to express their views, than expert members. Lay members were more likely, compared to judges and expert members, to view the courts as responding to children in a child-sensitive timeframe and to offer a child-friendly environment. Lay members held more positive views on the courts using child-friendly language, compared to judges, but judges were more likely (compared to lay members) to indicate that evidence from children was collected in a child-sensitive manner. 5 Discussion Child friendliness of the courts was one of the criteria in the Child Rights International Network’s (crin) global ranking of the extent to which children´s rights are upheld in 197 national legal systems (crin, 2016). The national court systems were measured against standards from international treaties on how well they enable children to access justice and enforce their rights, rather than how well they actually perform in upholding children’s rights (crin, 2016, 6). In the 2016 ranking, Finland stands at number 4, the United Kingdom tenth, Norway thirteenth, and the usa at number 52. Our study complements these results by focusing specifically on child protection proceedings, with the Berrick ET AL. international journal of children’s rights 26 (2018) 251-277 <UN> 268 Figures1–6 Mean scores per statements and per country. 1 = highly disagree, 5 = highly agree. 3.6 4 3.7 England Strongly disagree Strongly agree 1: Express views 1 5 4 3 2 Finland Norway USA 4.4 3.2 2.7 4 England Strongly disagree Strongly agree 1 5 4 3 2 Finland Norway USA 3.5 2: Child-sensitive time frame 3 2.5 2.1 England Strongly disagree Strongly agree 1 5 4 3 2 Finland Norway USA 3.5 3: Child-friendly environment 3 3.3 2.3 England Strongly disagree Strongly agree 1 5 4 3 2 Finland Norway USA 3.6 4: Child-friendly language 3.5 3.4 3.8 England Strongly disagree Strongly agree 1 5 4 3 2 Finland Norway USA 3.7 5: Child-friendly manner 4 3.8 4.4 England Strongly disagree Strongly agree 1 5 4 3 2 Finland Norway USA 3.9 6: Children's rights particular issues they raise for children’s involvement. We asked officials who decide these cases how they view the child-friendliness of the courts. We presented them with six statements representing standard features of child responsive courts. These are relative questions – we do not know the reference 269Child friendly courts international journal of children’s rights 26 (2018) 251-277 <UN> point our participants use in responding to these questions. For example, it may be considered typical, and therefore expected, that child protection proceedings in the u.s. are very brief, where the opportunity for children’s participation is extremely limited in objective terms. But relative to the opportunity to participate for other actors in the courtroom, the California respondents may view children’s participation as positive. Our study is country comparative, and we examined if there were differences between systems as well as differences between different types of decision makers. Findings from California stand out, as judicial respondents were more likely than respondents in other countries to suggest that children had a right to express their views, that judicial proceedings were responsive to children’s sense of time, that the courts offered a child-friendly environment, and used childfriendly language (it is intriguing therefore, that the usa comes so much lower in the crin ranking: perhaps the Californians are not typical of other us judges). The fact that California judges were so positive about their courts as being child-friendly likely reflects that state’s concerted efforts in recent years to train judges about children’s needs and desires in the courtroom, the advocacy of a few vocal judicial leaders on these issues, and legislative clarification about the opportunities that should be afforded children vis-à-vis court. California is also recognised across the usa as one of the few states that provides an attorney to every child in foster care; an effort to strengthen youth “voice” in court, albeit indirectly. Relative to California courts in previous years, judicial settings are probably much more child-responsive than they used to be. Nevertheless, it is important to bear in mind that dependency proceedings in California and many states in the u.s. are brief events. According to one study of California juvenile courts, the median duration of dependency hearings in California is between 10–15 minutes (Administrative Office of the Courts, 2005), so the opportunity for meaningful youth participation is probably limited in most cases. In contrast to California, the English judges perceived that their courts were not particularly child-friendly, and specifically they expressed that neither environment nor language used were child friendly. Compared to the other countries, English judges were more likely to indicate that proceedings were conducted in a child-sensitive time frame and that children´s rights are paramount. A likely reason for the judges to perceive that proceedings are undertaken in a child sensitive time frame is that there have been major reforms in England to speed up the judicial process for care orders. It has been a legal requirement since 2014 for care proceedings to conclude within 26 weeks, save for “exceptional” cases (see Dickens et al., 2014). The average duration fell from 50 weeks in 2011 to 26 weeks in 2016 (Ministry of Justice, 2017, 2). The response about children’s rights is somewhat more surprising, given that the principal Berrick ET AL. international journal of children’s rights 26 (2018) 251-277 <UN> 270 piece of legislation, the Children Act 1989, makes the child’s welfare the court’s paramount concern. It does not explicitly refer to the child’s rights, but it does specify the importance of hearing the child’s views (through the lawyer and children’s guardian). It seems the judicial decision makers interpret the welfare requirement and role of the court in terms of children’s rights. In contrast to the judges in England and California, the Norwegian and Finnish judicial decision makers were in the middle on most of their responses. Only on one issue did they stand out, with the Finns scoring low on the statement that the duration of care order proceedings was child-friendly. Although Finnish legislation requires speed in dealing with child protection issues, there are no timelines specified in the law. As a possible result, these processes can be lengthy; on average 5.3 months (Pösö and Huhtanen, 2017), contributing to respondents’ views that care proceedings are not attentive to children’s sense of time. Interestingly, this is still lower than the 26 weeks that the English judicial decision makers spend. Judicial decision makers in Norway, with the exception of confirming that children´s rights serve as a paramount frame, were not overly positive about the child-friendliness of their courts. They overall placed themselves above the mid-score, seemingly satisfied but not top in class. Findings from all countries show a strong affirmation that children’s rights serve as the paramount frame for court decision making. These results are not surprising in the context of Finland and Norway, where legislation affirms a children’s rights framework, but are more intriguing for England and California. England scored especially highly even though, as noted above, the law requires that the child’s welfare is the court’s paramount consideration (Children Act 1989, s. 1). And in California, a child “safety” orientation would typically describe judicial decision making in the context of a balance between children’s and parents’ rights. As such, we would have expected that the judges in California would report a lower score on this topic. The findings show that only in Norway were there differences between the types of judicial decision makers in their assessment of the child friendliness of the court, and primarily it was the lay members of the board that differed from the judge and the expert member. Overall, the lay members were more positive as regards the courts’ child friendliness than the “professional” judicial decision makers. The reason for the differences may be a combination of lay members having less experience with the proceedings, since typically they are included in only one or two cases a year, and they do not have training in, or experience of, children in child protection cases. 5.1 Limitations Findings from this study shed intriguing light on judicial decision makers’ views about their courts as responsive to children as important clients and 271Child friendly courts international journal of children’s rights 26 (2018) 251-277 <UN> possible agents of their fate. Some limitations, of course, bind our interpretations. The study was limited to the field of child protection and did not address other areas relevant to children (divorce or family proceedings, for example). In each country, different strategies were used to engage a sample of judicial decision makers, and each country has response rates that vary. In addition to our sample, we cannot be clear how these judicial agents responded to the survey. To what degree were these judicial actors describing the general tone and tenor of their own courtroom, or were they responding to their perceptions of others’ courtrooms, or to a cultural norm of how they think courtrooms should operate? Further, although the authors took pains to ensure that the language used in each survey was appropriate to the participants in each country, we cannot be sure that each question was interpreted similarly by all respondents. It is also likely that the decision makers coming from different disciplinary backgrounds (legal training, training in child welfare or lay knowledge) used different criteria to assess the dimensions of child-friendliness. Child-friendly language, for example, can be a different issue for a child psychologist, or an expert member, compared to a legally trained judge. Finally, the comparisons between the countries provide us with an excellent illustration of how respondents’ interpretations of a situation are relative to the respondents’ context and reality. For example, English judges score high (4 out of 5) on child-sensitive time frame and the Finns score the lowest (2.7 out of 5), yet we know that the Finns use less time than the English judiciary decision makers as mentioned above. Finally, we are acutely aware that this study about child friendly courts, does not include the experiences of the most important stakeholders, the children. Conclusion Even though the crc is clear and there are major efforts from the Council of Europe to ensure children a prominent place in matters concerning them, there remain wide disagreements in the field about the degree to which courts should be or become “child-friendly” to accommodate the participation of children. Widely varying philosophical perspectives on children’s capacities and maturity, their sensitivity to the topics under consideration in court, and different views about how or if court participation might be perceived as empowering or disempowering, still animate debates among judicial officers, legal experts and child protection professionals. For those jurisdictions that want to embrace a child-sensitive approach, practical matters limit the development of truly child-centered environments. Many of the courtrooms that hear family cases are harried and over-burdened. Authentic inclusion of Berrick ET AL. international journal of children’s rights 26 (2018) 251-277 <UN> 272 children’s participation requires much more than a comfortable waiting room or a stuffed animal gift. Child-responsive courts include – at a minimum – thoughtful architecture, well-trained staff at all levels, therapeutic support and ample time to prepare children before, during and after the court hearing. The dilemmas and the practical considerations mean that children’s direct participation in child protection court cases remains contested in all four countries in this study. Determining if and how children’s rights can be genuinely expressed and thoughtfully considered, while children’s developmental and emotional wellbeing is fully protected in the context of highly sensitive family matters, is extremely challenging. Because of the difficulties, we should expect to see great variability not only across countries, but also within countries and across jurisdictions – even between different courtrooms in the same jurisdiction. The challenge is how much variation is compatible with equal treatment and justice for all. It does not bode well for fairness or quality of decision making if children have very different opportunities and support to participate, solely on the basis of which courtroom their case is heard in. In that sense, training for the judicial decision makers is essential, along with the other changes identified above for achieving child responsive courts. One of the challenges for delivering such training is that it must be consistent with the principles of judicial independence and sensitive to the particular circumstances of each case. Furthermore, our study suggests that the responses of the court decision makers are strongly influenced by their own context – for example, the English respondents are highly positive about the timescale of proceedings in their country, but that is because it is so much shorter than it was only a few years ago; and the responses of the California judges reflect the recent efforts made there to enhance the child friendliness of the courtroom. The Finnish respondents’ positive view about their use of child-friendly language should be understood in the country context in which children entering the court room are mainly teenagers. 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