A/HRC/25/47
dispositions to ensure that children are dealt with in a manner appropriate to their wellbeing, and proportionate both to their circumstances and to the offence (art. 40, para. 4).
61.
These important provisions have been further complemented by significant
international standards on human rights in the administration of justice.18 Moreover, the
Economic and Social Council adopted basic principles on the use of restorative justice,
encouraging the development of mediation, conciliation, conferencing and sentencing
circles as effective alternatives to formal criminal justice mechanisms.19 Through its general
comments, the Committee on the Rights of the Child has also promoted restorative justice
programmes.20
B.
Restorative justice models
1.
Family group conferencing
62.
Family group conferencing (FGC) is a model derived from traditional means of
dispute resolution found among the Maori communities in New Zealand. Emphasizing
collective responsibility and justice, the approach draws on community strengths and
resources to develop solutions to conflicts, including community consideration of the
underlying factors contributing to delinquency, such as child abuse and neglect. FGC
recognizes the interests of the victim, and the importance of the active involvement of the
victim in the resolution of the harm caused.
63.
The Children, Young Persons and Their Families Act of New Zealand includes a
presumption in favour of diversion. Accordingly, offences by children are primarily
referred to an FGC, with a view to keeping children away from formal court proceedings.
64.
Typically, FGC participants discuss the offence with a trained facilitator, giving both
victim and offender the opportunity to describe their experience. This enables the offender
to build an understanding of the harm caused, and the parties to find an appropriate
resolution to the conflict through a collective agreement. A proposal for a suitable
diversionary programme is developed, which is then presented to the court and to which the
offender must consent freely. The court acts as an oversight mechanism to ensure that the
agreement is legally sound and has a follow-up function to assess compliance.
65.
FGCs have been used to address offences against children, including cases of child
maltreatment, as well as to address offences committed by children, and incidents of
domestic violence and drug abuse. They have also been implemented in non-judicial
settings, such as schools and residential care facilities.
66.
Variations of the model have been implemented in many countries.21 In Thailand,
for example, family and community group conferencing is an alternative non-prosecution
measure for child offenders who have committed crimes warranting a sentence of five years
18
19
20
21
14
These include the United Nations Standard Minimum Rules for the Administration of Juvenile Justice
(the Beijing Rules), the United Nations Guidelines for the Prevention of Juvenile Delinquency (the
Riyadh Guidelines), the United Nations Rules for the Protection of Juveniles Deprived of their
Liberty and the Guidelines for Action on Children in the Criminal Justice System.
Economic and Social Council resolutions 1999/26 on the development and implementation of
mediation and restorative justice measures in criminal justice; 1998/23 on international cooperation
aimed at the reduction of prison overcrowding and the promotion of alternative sentencing; and
1997/33 on elements of responsible crime prevention: standards and norms.
See general comments No. 10 (2007), No. 12 (2009) and No. 14 (2013).
These include Australia, Brazil, Canada, Peru, the Philippines, South Africa, Thailand and the United
States of America.
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