Blog post by Sara Lembrechts, PhD researcher at Ghent University, Migration Law Research Group [1]
This article reflects on the pioneering work of some Belgian asylum judges to include child-friendly language in eight of their judgments. Indeed, children and young people have a human right to understand legal decisions that affect them. This is true for all judgments and court rulings, but has a particular relevance for decisions in which the child’s views and opinions have not been followed. However, ensuring appellate asylum judgments are understandable for children seeking international protection is particularly challenging. Ongoing ethnographic fieldwork at the Belgian Council for Alien Law Litigation (CALL) reveals tensions on the level of communicating the – often child-unfriendly – outcome of appeal decisions to children, as well as in the lack of support for judges who wish to engage in (re)writing judgments for children. Addressing these tensions in a human rights-compliant manner highlights the simultaneous manifestation of vulnerability and agency, not only in the figure of the child seeking international protection, but also in the professional practice of asylum judges in developing their jurisprudence affecting children and young people.
First, the article situates child-friendly judgments within the legal framework of children’s human rights. Then, drawing from +/- 400 hours of ethnographic observations and conversations with judges at the CALL, the second section describes how children and judges interact in Belgian asylum appeal procedures. Section three continues with an illustration of how judges have included child-friendly language in eight asylum judgments. Finally, section four concludes, by addressing some of the challenges and opportunities of child-friendly judgment writing, with a focus on judges’ own perspectives.
Child-friendly judgments as a human right of children
There are many laws and regulations that establish the contours of what a justice system adapted to children and young people should look like. The cornerstone of this legal framework is the United Nations Convention on the Rights of the Child, which is to be read together with Article 24 of the Charter of Fundamental Rights of the European Union, case law of the European Court of Human Rights and numerous instruments at the level of the European Union. Of particular interest to practitioners are the Council of Europe (CoE) Guidelines on Child-Friendly Justice, which explain step by step how legal procedures should be tailored to children and young people. This legal framework of binding and non-binding instruments stipulates that justice becomes “child-friendly” when children’s human rights are guaranteed at all levels of the procedure, including on the level of communicating the judgment.
Applied in an appellate asylum context, this means that when children and young people (or their parents) initiate proceedings at the CALL, their rights to protection, participation and provision must be guaranteed throughout the entire appeal procedure. Protection includes, for example, the guarantee that the procedure – including the judgment – does not endanger the child, that her or his privacy, integrity and dignity are respected, that family unity is preserved as much as possible and that there is no discrimination. Children and young people also have the right to fully participate in the appellate asylum procedure. This means they have the right to access a fair procedure, as well as the right to information and feedback before, during and after their interaction with the court. Moreover, they should have a genuine opportunity to be heard and their views should be given due weight in the balancing of different interests. The appellate asylum procedure should also be adapted to children’s needs, for example by tailoring communication to the child’s age and ensuring a speedy and diligent process (Lembrechts, 2023; see also Stalford, Hollingsworth & Gilmore, 2017; Merckx & Lembrechts, 2023). These obligations are relevant throughout the entire appeal procedure, including at the stage of judgment writing (see, in particular, CoE Guidelines, Rule 49).
How children and judges interact in asylum appeals
Children’s interaction with judges at the CALL has both an oral and a written component. While asylum appeals at the CALL mainly proceed in writing, they usually involve a brief in-person hearing with a judge at the CALL premises in Brussels. In cases where appeals involve children, they are also invited to participate in this hearing. If minors are present and the judge considers it suitable, children and young people may be given an opportunity to briefly vocalise their thoughts. The judge might pose questions to the child or encourage them to share their views freely. Fieldwork observations show that this interaction typically lasts no longer than a few minutes at most. Still, judges consider the hearing to be an important opportunity to assess the child’s maturity (see also Lembrechts, 2023).
Judges communicate their decisions in a written judgment. A judgment has three possible outcomes:
- the judge rejects the appeal, and denies the applicant protection status in Belgium;
- the judge decides to reform the contested decision and, as a consequence, grant refugee status or subsidiary protection; or
- the judge annuls the case and sends it back to the first instance asylum authority, who should re-investigate the case and make a new decision.
A judgment is on average 17 pages long and is sent electronically or by registered post to the applicant’s elected domicile, usually the child’s or family’s lawyer. The lawyer must then to inform their clients of the outcome.
‘Why did the judge come to this decision in your case?’
Belgian asylum judges have engaged in unique pioneering work in adapting some of their judgments to meet the expectations of child-friendly asylum justice at the CALL. So-called ‘child-friendly judgments’ have been published as summaries at the start or end of a judgment, or as full texts in simplified legal language. The following one-page summary, for example, concludes a recent judgment (2023) in which the CALL rejects an application for international protection from a 15-year old girl from Iran:
“Below, the Council will summarise its decision. This will enable you, a child of fifteen years old, to follow and understand the decision with or without the assistance of an adult. […] The judge hopes this summary can help you better understand why she came to this decision in your case.”[2]
Using plain language, relatively short sentences, an understanding and humanising tone and a few words of praise – “You speak Dutch very fluently, which you also demonstrated to the judge during the hearing and for which you deserve a compliment” – the judge attempts to explain to the child why she does not grant international protection on the basis of her alleged conversion to Christianity.
Judges have used similar summaries in decisions about an 8-year old girl from Iraq (2023, publication forthcoming), an 11-year old girl from Iran (2023), a 15-year old boy from El Salvador (2022) and a family from El Salvador with two children aged 14 and 16 (2022). In three earlier Iraqi cases concerning a 13-year old boy (2018), a 15-year old girl (2020) and an 11-year old boy (2020), the asylum judge had written the full decision in simplified legal language, with the aspiration that in this way, “the applicant, a minor of [11/13/15] years old, can follow and understand the decision with or without adult assistance.”
Challenges and opportunities of child-friendly judgment writing at the CALL
Despite eight laudable examples in six years, child-friendly asylum judgments remain an exception and not the norm. Engaging in tailoring judgments to children has been a personal choice of four judges (about 10% of the corps), and only a limited number of cases convinced these judges of the added value of enhancing the comprehensibility and accessibility of their decisions to the children and young people concerned. A few other judges have expressed their support of the practice of child-friendly judgments in general, but have yet to adapt specific decisions themselves. Nevertheless, observations from the field confirm what is explained in literature, namely that these judges are conscious about the fact that asylum appeal decisions, and negative decisions that go against the views and wishes of the child in particular, have a major impact on children’s lives, and that these decisions should be communicated with increased sensitivity and care (see also UNHCR, 2021; Stalford & Hollingsworth, 2020, p. 1043; Kritzer, 2007, p. 336).
Judges’ decisions to consider child friendly judgment writing were, however, not explicitly motivated by children’s rights. Rather, observations and conversations with judges reveal that opportunities were mainly prompted by the overall impression the children conveyed on the judge – based on the case file and their participation in the hearing, their proficiency in the language used in the proceedings, their age, their level of education, and the judge’s assessment of their maturity.
Judges have also expressed concerns of both a practical and a relational nature. Sometimes, time pressure and insufficient awareness are mentioned as reasons why judges did not proceed with rewriting a judgment for children. As one judge explains:
“Recently I had a case that moved me deeply. The child and I had a meaningful conversation during the oral hearing. In the end, I didn’t include a child-friendly summary, but in hindsight I’m mad at myself for not doing it… You know, it’s like that quote, ‘I’m sorry I wrote you such a long letter, I didn’t have the time to write a short one…’ I believe that’s what happened to me there… You have to carefully think this through, especially if something serious has happened to this child. We have quite a demanding pace to maintain here, the appeals have to be decided – the judgment is ready on time and that’s all what truly counts…”
Another judge explained that he considered including a child-friendly summary in a judgment because he was convinced the children concerned could benefit from it, but finally decided not to because the reasoning behind the decision was predominantly technical, and less substantive, which he considered less suitable for an adapted judgment.
Judges have also reflected on the implications of engaging in child-friendly judgments for the delicate balance between involvement and distance as a decision-maker: “This exercise also makes you more vulnerable as a judge, as the natural distance that dry legal language creates between you and the applicant is no longer there. Cases with children are always more touching – but child-friendly communication reinforces that feeling, as it removes a lot of the ‘safe’ distance that allows not to get too personally involved… I have mixed feelings about it.”
Other judges question whether rewriting judgments is worth the effort at all, either because they have difficulties imagining children and young people actually reading the judgments, or because they consider that a child-friendly translation is the responsibility of the lawyer, not the judge. If a minor is not present during the hearing, this is also a reason for judges not to include child-friendly language. In addition, concerns about the judgments no longer being ‘cassation-proof’ if judges become too creative, have been raised within the corps.
Finally, it is worth mentioning that asylum rejection decisions often convey particularly ‘child-unfriendly’ messages to the children and young people concerned. In this context, one judge wonders, “[…] and that is really a practical question, what language, what words can I use to clearly but respectfully point out contradictions, implausibilities or gaps in a child’s story? I don’t want to say ‘you lied’, or ‘I don’t believe you’, but how should I express myself then so that the child can understand my decision without feeling offended? Because actually that is at the heart of what I say – I don’t believe you.” This concern is also echoed in the literature, where it is recognised that denying protection status in itself is a very disheartening message to receive, and that “no amount of sugar coating will make this bitter pill easier to swallow” (Stalford & Hollingsworth, 2020, p. 1050).
Conclusion
Communicating decisions that deny international protection to children is a delicate exercise. On the one hand, it requires a thorough engagement with children’s vulnerable position on the receiving end of an overwhelmingly difficult message. On the other hand, interaction with children through written judgments provides a meaningful and unique opportunity for judges and decision-makers to recognise children’s agency and “speak to [them] as legal citizens” (Stalford & Hollingsworth, 2020, p. 1057) – who have a right to be informed, to understand, to be seen, to be heard, and to be taken seriously in matters affecting them. Importantly, Belloni (in Chase and others, 2020, p. 464) has held that recognising this agency and acting upon it “does not make [children seeking international protection] less vulnerable, it just makes them more human.”
Belgian asylum judges have the autonomy to adjust their professional and decision-making practice to the benefit of children and young people. Several of them have indeed genuinely engaged or considered engaging in adapting (part of) their judgments to children. Judges’ views on and experiences with child-friendly judgment writing provide a unique insight into the ways in which asylum justice systems in Belgium and beyond can support judges to realise child-friendly justice in the asylum courtroom.
The reflections above show at least three avenues for improved support:
- increased awareness-raising on the concrete implications of applying children’s human rights in judgment writing,
- specialised practical training and support for judges and their staff in how to develop the right language and tone of voice in judgments for children, and
- additional support for judges and staff in navigating the psychological and relational implications of engaging in child-friendly judgment writing.
(Re)writing judgments for children brings with it a certain vulnerability. But here again, recognising this vulnerability and acting upon it does not make judges less agentic, it rather makes them “more human” too.
[1] This post is based on ongoing PhD research (FWO G015520N, 2020-2025) on the human rights of children and young people in appellate asylum procedures at the Belgian Council for Alien Law Litigation (CALL). Since 2021, the researcher is conducting fieldwork and action research at the CALL, with a focus on interactions between judges and children in the asylum courtroom. In addition, she is engaging in in-depth interviews with judges and minors who have experienced (part of) an appellate asylum procedure at the CALL. The project is subject to a Memorandum of Understanding between the CALL and the researcher, and ethical approval has been obtained from the Ethics Committee of the Faculty of Law and Criminology at Ghent University.
[2] All decisions referred to in this post are published in Dutch or French. Interviews and (in)formal conversations with judges and children have been conducted in Dutch and French. Direct quotations have been translated into English by the author.
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