2. Purpose and Vision of a Child-friendly Justice System in Egypt
This chapter provides an introduction to the concept of child-friendly access to justice in Egypt and the need to make progress in this field in light of the United Nations (UN) 2030 Agenda, as well as Egyptian national strategies to achieve child well-being and development, such as Vision 2030, the National Childhood and Motherhood Strategy and the Human Rights Strategy. It provides an overview and analysis of the legal framework applicable to children in Egypt at both the international and national levels. It also describes the project and the methodology followed in compiling this strategic review.
Having a clear understanding of the purpose of the justice system is critical to steer reforms, initiatives and investments towards a desired outcome. Building on the people-centred justice approach (OECD, 2021[1]), the purpose of the justice system and its components could involve:
“Providing equal access to justice for all children by placing them at the centre of relevant parts of justice systems, and in particular identifying and meeting the legal and justice needs of children at their various stages of maturity and capacity, and committing to a “culture” that seeks to support this child-friendly focus within a broader people-centred purpose.” (OECD forthcoming, 2023[2])
Such a purpose aims to recognise that seeking to engage with and hear the views of children in relation to their legal needs must take into account their evolving levels of capacity and maturity. A key challenge is that many children, particularly younger children, are deemed to lack or may, in fact, lack sufficient legal capacity, which means that adults are responsible for speaking on their behalf. Accordingly, attempts to hear children’s voices and to engage them in the co-design of justice policies and services would often require significant support from adults. Therefore, for this group in particular, a holistic vision needs to be developed that would enable children, as far as possible, to have equal access to a full range of quality, appropriate, legal, justice and related services (OECD forthcoming, 2023[2]).
The basis of access to justice is equality and social inclusion, as set out in the “leave no one behind” imperative of the SDGs. In essence, justice systems exist to protect the vulnerable from abuse and exploitation, resolve disputes and foster participation in just societies, leading to positive repercussions on all other SDGs. Justice systems that ensure the protection of children’s rights could shed light on ineffective or discriminatory public policies, acting as an enabler for positive legal and regulatory reforms that advance child well-being. Considering this, access to justice for children provides a tool for Egypt to operationalise and implement the objectives set in its National Child Strategy and Human Rights Strategy, and to align them with its Vision 2030 and the SDGs.
2.1.1. Importance of SDG 16.3 for children’s well-being
SDG 16.3 commits all member states to “promote the rule of law at the national and international levels, and ensure equal access to justice for all.” (OECD forthcoming, 2023[2]) Under this agenda, equal access to justice is accepted as a fundamental component of inclusive development and growth, good governance and effective public policy, as well as the rule of law (OECD, 2019[3]).
Although the impact of legal problems on children has not been measured, some studies have examined the impact on young people aged 16-24, finding that young people from disadvantaged groups, such as those who are unemployed or socially isolated, are more likely than the population as a whole to worry about their legal problems and to report, as a result of their problems: stress-related illness; violence; loss of home; loss of confidence; and physical ill health (Kendrick, 2011[4]). A review of international evidence of links between young people’s legal problems and their health and well-being confirmed that the links were reciprocal (Woodhead et al., 2022[5]).
The receipt of legal advice by young people has been reported to be effective at averting serious adverse outcomes, including homelessness, criminal behaviour, mental health problems, social services intervention and even death (Kendrick, 2011[4]). In addition, getting advice improves young people’s physical, mental, social and emotional well-being, problem-solving skills, housing situations and their ability to manage money and stay safe from harm (Woodhead et al., 2022[5]).
In addition, several studies have examined the impact of professional advice on psychosocial factors such as young people’s self-confidence, perceived social support, knowledge and awareness of rights and where to seek help in future, interpersonal relationships and communication skills. By dealing with pressing legal and social problems, this advice gave young people space to think and make important life decisions, left them feeling more in control of their lives, and better able to make decisions affecting key life domains (Woodhead et al., 2022[5]).
This evidence base suggests that the achievement of SDG 16.3 targets can positively impact children and young people’s lives beyond their access to justice, impacting their wider opportunities to achieve their full development, find employment, and maintain their health and overall well-being. Indeed, access to justice can play a crucial role in Egypt’s efforts to address children’s rights, needs and aspirations and as an engine of societal change given the vital link between children’s developmental and social needs and adequate access to legal remedies and protection.
2.1.2. The alignment of child policies through Egypt's Childhood Strategy, Human Rights Strategy, Sustainable Development Strategy and SDG commitments
Egypt’s Childhood and Motherhood Strategy and its Human Rights Strategy (The Supreme Standing Committee for Human Rights (SSCHR), n.d.[6]) mention the specificity of children's needs and rights. The Childhood Strategy illustrates the critical necessity of protecting children from all forms of physical and psychological violence, ensuring the protection and respect of their core rights to housing, education, participation and protection, as well as combating child labour, human trafficking and abuse of the most vulnerable children. Similarly, Egypt’s Human Rights strategy includes protecting children’s rights as one of its focus areas. It indicates that legal awareness of children and their protection from abuse, exploitation, negligence and all forms of violence are essential. In this sense, access to justice ensures the protection of children’s fundamental rights and fosters increased awareness of their specific need for protection. With the pragmatic and forward-thinking nature of the childhood and human rights strategies providing a strong impetus for policy and legal reform, Egypt is in a position to significantly improve access to justice for children and, in turn, enhance the overall situation of Egyptian children and their quality of life.
2.2.1. The links between child-friendly access to justice, inclusive growth and the Sustainable Development Goals (SDGs)
Sound justice systems underpin the rule of law, good governance, protection of human rights and efforts to tackle inequalities and development challenges. Growing evidence highlights a complex relationship between unequal access to justice and broader socio-economic gaps. The inability to access justice can be both a result and a cause of disadvantage and poverty. Evidence shows that access to justice and development have a significant interrelation and are mutually reinforcing, making access to justice essential for inclusive growth and sustainable development at the national and international levels.
The significant impact of a fair, affordable and accessible justice system on sustainable development has been confirmed by its inclusion as part of SDG 16.3: “Promote the rule of law at the national and international levels and ensure access to justice for all.” The SDGs call on all countries to make tangible improvements to the lives of their people, in line with the UN 2030’s vision of a “just, equitable, tolerant, open and socially inclusive world in which the needs of the most vulnerable are met.” Given that children in Egypt make up an estimated 40% of the total population, (UNICEF, 2017[7]) achieving the SDGs will significantly impact the lives of Egypt’s future generations. However, there remains much to do globally to achieve this objective for children.
Children are at the forefront of many of the challenges countries face as they are affected by all the SDGs, whether poverty (Goal 1), hunger (Goal 2), health (Goal 3), education (Goal 4), gender equality (Goal 5), climate change (Goal 13) or violence and lack of access to justice (Goal 16). However, children are distinct from adults and have specific needs, rights and capacities to resolve their problems. Responding appropriately to children considering this distinctiveness, including when it comes to accessing justice services, is essential for the successful and equitable delivery of these global goals.
2.2.2. Legal needs and the global costs of children’s unresolved needs
A legal need relates to a problem in different life areas – e.g. education, health, employment, administrative or neighbourhood issues – with a legal dimension, whether or not this legal need is recognised by those affected (OECD, 2021[1]). They are not exclusive to any category of the population. Globally, there is mounting evidence of a close association between experiencing legal problems and broader health, social welfare and economic well-being issues (OECD, 2019[8]). Specifically, unresolved legal problems appear to have an adverse impact on many aspects of young people’s lives, most commonly leading to young people becoming ill, often due to stress, losing income, or losing confidence. However, such problems can also lead to young people experiencing violence, homelessness, relationship breakdown, and barriers to education and employment (Kendrick, 2011[4]).
The costs on individuals resulting from legal problems are not uniformly distributed across the population. Disadvantaged groups, such as low-income earners, people with disabilities or minority groups, are more exposed to the adverse consequences of legal problems (OECD, 2019[8]).
Such adverse consequences generate high costs for individuals, states and societies at large. Taking into account the direct expenditure related to legal problems across the adult population and the cost of adverse consequences on people’s health, income and employment situations, the OECD estimates the annual costs of legal problems for the individuals affected as ranging from 0.5% to 3% of the gross domestic product in most countries. Among the seven low-income countries studied, five, namely Ethiopia, Madagascar, Malawi, Nepal and Senegal, were affected by legal and associated costs exceeding 2% of their gross domestic product (OECD, 2019[8]). The public cost of unresolved problems experienced by 16-24 year-olds in the United Kingdom is estimated at GBP 1 billion (pounds) per year (Kendrick, 2011[4]).
The burden imposed by legal problems can be efficiently mitigated by ensuring that citizens can access high-quality legal services, including legal aid to provide representation for clients with low legal capability 1 or with complex legal needs. The evidence shows that full legal representation leads to better outcomes both for individuals and for society as a whole (OECD, 2019[8]). A recent UK study has estimated that savings of GBP 8 000 of public finances can be achieved over one year in respect of each client receiving free legal advice (Leckie, Munro and Pragnell, n.d.[9]).
In particular, understanding the strong associations between children and young people’s legal needs and their mental health is particularly important in developing access to justice solutions (Sefton, 2010[10]) (Balmer and Pleasence, 2012[11]). It has been argued that huge savings could potentially be made by intervening more smartly by tackling young people’s social welfare, legal and mental health problems in a co-ordinated, accessible way in young person-friendly settings (Youth Access, 2015[12]).
For children and young people, access to legal support can be essential for successfully resolving their legal problems and thus combating poverty and exclusion by securing their rights to social protection, education and health care. The positive difference made by legal advice services appears to be greater for young people than for the general population, suggesting that targeted investment in advice services for young people could be better value for money than non-age-specific approaches (Kendrick, 2011[4]). Advice services for young people have been calculated to be “clearly cost-effective” on the grounds of mental health improvements alone (Balmer and Pleasence, 2012[11]).
2.2.3. Justice needs and existing barriers for children accessing justice
A “justice need” refers to the demand to access (public) justice services and other dispute resolution mechanisms to obtain recognition of and remedy a legal need (OECD, 2021[1]).
Globally, including in Egypt, children often face difficulties in accessing justice systems, particularly due to a lack of age-appropriate information and settings, lengthy proceedings, and long waiting times to obtain a resolution (Council of Europe, 2010[13]). This is exacerbated when children need to attend the courts to enforce their rights or as victims of a crime, especially when consent or support from their abusers is required in order to access justice (Davidson et al., 2019[14]) and their views and experiences are not given adequate weight. At the same time, child offenders often do not experience child-sensitive settings, including but not limited to, communication and hearing techniques adapted to their level of maturity and attention, as well as child-friendly rooms and facilities. International experience also shows that children and their families often have very limited knowledge and understanding about the rights of a child and where and whether to seek help in specific situations.
It, therefore, follows that a child-friendly justice system requires an adaptation to children’s sensitive needs and interests and greater responsiveness to children’s participation in formal and informal decision making concerning them. This can include simplifying procedures and language used, the presence of support professionals who specialise in the needs of children of different ages, and the existence of child-friendly facilities. The concept of a child-friendly justice system acknowledges not only children’s particular vulnerability but also their capability to exercise their rights in a manner consistent with their evolving capacities (Box 2.1).
Global definitions of access to justice and what it means to become “child-friendly”.
Access to justice: “Access to justice can be defined as the ability to obtain a just and timely remedy for violations of rights as put forth in national and international norms and standards. Lack of access to justice is a defining attribute of poverty and an impediment to poverty eradication and gender equality (…) Proper access to justice requires legal empowerment of all children: all should be enabled to claim their rights, through legal and other services such as child rights education or advice and support from knowledgeable adults.”
Children at the centre of a justice service continuum: “Leaving no one [child] behind in accessing justice requires rethinking the traditional approaches to delivering legal and justice services, focusing first and foremost on responding to people’s [children’s] needs. Services need to be “personalised” and responsive to the individual [child] and the situation.”
Child-friendly justice: “…refers to justice systems which guarantee the respect and the effective implementation of all children’s rights at the highest attainable level…. It is, in particular, justice that is accessible, age appropriate, speedy, diligent, adapted to and focused on the needs and rights of the child, respecting the rights of the child including the rights to due process, to participate in and to understand the proceedings, to respect for private and family life and to integrity and dignity.”
Sources: (Council of Europe, 2010[13]), Guidelines of the Committee of Ministers on child friendly justice, II c, https://rm.coe.int/16804b2cf3; UN (2008), Common Approach to Justice for Children; OECD (2019), Equal Access to Justice for Inclusive Growth: Putting People at the Centre, OECD Publishing, Paris, p. 15.
However, despite a progressive international human rights framework concerning child-friendly justice systems and increasing efforts to implement policies and initiatives aimed at strengthening child-friendly justice worldwide, only a limited number of children whose rights are violated around the world initiate legal action and seek redress, whilst even fewer actually obtain an effective remedy. At the same time, child offenders often face difficulties understanding and navigating the juvenile justice system, are scared by the lack of child-sensitive settings and language, and face challenges obtaining affordable legal advice appropriate to their development level. In turn, child offenders often do not have their rights to due process respected or achieve full social reintegration.
2.3.1. Project description and partners
The project “Towards a Child-Friendly Justice System in Egypt” aims to support the development of a child-friendly justice system in Egypt by enhancing the capacity, institutional co-ordination and effectiveness of the Egyptian justice system to better protect children in contact with the law. Importantly, the project aims to facilitate high- and mid-level engagement of, and dialogue between, the main stakeholders in support of the effective implementation of the objectives of the Strategic Framework (2018-2030) and the National Plan for Childhood and Motherhood in Egypt (2018-2022).2 These outcomes are implemented through a set of activities to help identify key challenges and opportunities in this field and to build a roadmap for reform, including raising awareness of the importance of child-friendly justice.
Aligned with the Egypt Vision 2030, the National Child Strategy and the UN SDGs, the OECD is carrying out this project with the financial support of the Swiss Agency for Development and Cooperation. It also builds on the work of the MENA-OECD Governance Programme and the rule of law support to Egypt and is underpinned by the OECD work on access to justice and child well-being. The OECD’s support towards a child-friendly justice system seeks to highlight the importance of access to justice for children in implementing the UN 2030 agenda. It also aims to reveal the complex equation of complementarities and trade-offs across the whole child-friendly justice ecosystem and offers policy advice that could lead to more coherent and co-ordinated justice services for children. In addition, this project emphasises the necessity to understand better the needs and aspirations of children in Egypt.
This strategic review Towards a child-friendly justice system in Egypt: Implementing SDGs for children, considers a range of essential components of a child-friendly justice system in all its forms – criminal, civil and administrative justice – assessing whether and to what extent it meets the rights and needs of children. It includes a review of legislative and institutional frameworks and an analysis of specific design and delivery mechanisms of justice services based on the legal needs of children. It aims to enable a common understanding of the current state of the Egyptian justice system to support the review process, and that will allow Egypt to reflect on its reform agenda nationally and from a comparative perspective. It places emphasis on identifying the roles, responsibilities and co-operation opportunities for the most relevant governmental stakeholders involved in child-friendly justice. It reflects a wide variety of views gathered from Egyptian institutional stakeholders, civil society, international organisations, OECD country peers and children through the Egyptian Child Forum.
The strategic review’s analysis and recommendations will also serve as a basis for developing an action roadmap and tailored good practice guidelines in the context of this project. This will also serve to focus different capacity-building and policy dialogue activities on the most salient challenges facing the Egyptian child justice system.
Concerning further areas of attention that could be relevant to Egypt, more specific consideration of issues related to children in families in the midst of international custody disputes would be beneficial. Future interventions could consider providing Egypt with policy guidance and technical assistance on international custody matters based on a comprehensive and child-centred approach, as well as supporting the Ministry of Justice and the members of the Goodwill Committee, judges sitting in Family Courts, and members of Dispute Settlement Bureaus within Family Courts.
In addition, there is scope to deepen the analysis of and support for initiatives aimed at protecting vulnerable children in contact with the justice system, including refugees and migrants, children with disabilities, girls, and children living in rural areas or border governorates. Moreover, Egypt could benefit from additional policy support on potential modern and innovative solutions in the context of strengthening the overall approach to access to justice for all, which would also improve access to justice for children. Such strategies could be implemented in the future, drawing from global experiences to protect vulnerable groups, for example, through mobile courts and programmes or safe one-stop-shops for children at risk.
To fully support and advise Egypt in its efforts to develop a child-centred justice system, this analysis would require enhanced access to information and data, both qualitative and quantitative. A Legal Needs Survey for children or further strengthening of the use of data in evidence-based justice policy planning could have a significant positive impact on the child-friendliness, effectiveness, and efficiency of Justice in Egypt.
2.3.2. Methodology and definitions
This strategic review is based on a child-centred perspective, including needs and experiences at various points along the justice pathway from the beginning of a legal issue until its resolution – from prevention and protection to post-resolution support. The analytical framework used is the OECD Child-friendly Justice Framework (forthcoming) and the related People-centred Justice Framework and Good Practice Principles, as well as the OECD criteria for people-centred design and delivery of legal and justice services. It expands the work of the Justice for Children Call to Action, an international, multi-agency project that was launched in 2019 with the aim to support the collective global commitment to ensure that children are placed at the heart of the access to justice agenda (Davidson et al., 2019[14]).
It also builds on the outcomes of discussions during the OECD Global Roundtables on Access to Justice – attended by over one hundred ministry of justice officials, partner international organisation representatives and thematic experts,3 and discussions during the 2021 World Congress on Justice with Children.4
It is comprehensive in its consideration of children who are victims, witnesses, interested parties or offenders in the criminal, administrative and civil spheres. This strategic review is built on the basic premise that, irrespective of the reason that children interact with the law, it is important that they are met with a system that puts them at the centre and provides services that address their unique needs and vulnerabilities.
In order to follow the pathway of the child in any legal proceeding – criminal, civil, or administrative – this review attempts to follow the phases in a child’s contact with the justice system. The review analyses the phases prior to, during, and after court proceedings, as well as other actions that are taken on the pathway, including diversion and dispositions in any of those phases of the child’s contact with the justice system.
These findings are the result of research activities undertaken by the OECD Justice and MENA-OECD Governance Programme teams within the Public Governance Directorate, including a comprehensive review of publicly available legislation, policy documents, national and international organisation sources, civil society input and academic reports. To complement the knowledge gathered, the OECD has also organised several policy dialogues, capacity-building workshops and peer-to-peer seminars, and conducted working meetings and interviews with various officials and representatives from public institutions, international organisations, and national and international non-governmental organisations in Cairo and Giza. Furthermore, the OECD interventions and analysis undertaken in the context of this project have sought to complement relevant projects implemented by other development partners and non-governmental organisations (NGOs) on the ground. The OECD also visited the Alexandria governorate to understand the functioning of the Child Protection Committee (CPC) and regional justice services. Interviews and meetings held in-person or virtually have included:
In addition, the OECD conducted a focus group discussion (FGD) with child representatives of the Egyptian Child Forum in June 2022, facilitated by local consultants with expertise in child justice and supported by a tailored methodology developed specifically by international experts in this field to conduct this discussion in Egypt. The discussion focused on the legal needs that they thought children might experience, how the system serves them and how it could improve.
In order to unify terminology across institutions, in both English and Arabic, Table 2.1 maps the most important terms and definitions.
2.3.3. Towards a child-friendly justice culture
Implementation of a vision for a child-friendly people-centred justice system requires an engrained culture that enables all relevant elements of the justice system to be continuously focused on achieving (or contributing to the achievement of) the child-friendly purpose. This implies a systemic process to enable all elements of the justice system to continually refer back to and align with that purpose. A key factor in achieving a child-friendly purpose and culture will be the level of engagement with children and young people to ensure their voices are heard and used (OECD forthcoming, 2023[2]).
Following the approval of the 2008 amendments to the Child Law, the Convention on the Rights of the Child (CRC) Committee commended Egypt for transitioning from a punitive to a child rights-oriented justice system (United Nations, n.d.[15]).5 Egypt has since made progress in implementing the provisions of the law and aligning its national strategies with this goal. Building on these efforts, there appears to be a need to raise further awareness in Egypt of the status of children as rights-holders separate from their parents or guardians, as well as to increase their participation in child-policy making and legal processes, whether in the criminal, civil or administrative fields. For instance, in civil and administrative proceedings, it has become apparent from stakeholder interviews that there is a limited understanding of children as rights-bearers. Children are rarely present in court for family proceedings that affect them unless the judge specifically requests their opinion, which is considered rare. Public communication efforts were initiated by the NCCM and the Ministry of Justice, focusing on the best interests of the child, child participation and empowerment, and more broadly the need to strengthen the child-friendly justice culture. All the child justice institutions can contribute to making this a reality among the public and justice sector’s staff. Box 2.2 outlines the elements of a child-friendly culture according to the OECD Framework for Child-friendly Justice within a People-centred Justice System (OECD forthcoming, 2023[2]).
Constantly referring back to the purpose: a child-friendly culture would see all elements of the justice system continually refer back to the purpose of enabling equal access to justice for children to ensure that actions, policies and reforms remain focused on that purpose.
Understanding the legal and justice needs of children from their perspective: a crucial first step in establishing and maintaining a child-friendly approach is to regularly identify the legal and justice needs of children as they experience them. Doing so requires taking into consideration all children and their particular circumstances. A people-centred justice culture for children would look beyond the formal institutions to identify legal and justice needs in communities, as the children and their families living there experience them.
Seeking to create and maintain appropriate legal, policy and institutional frameworks guided by international best practice: the Convention on the Rights of the Child (CRC), the three optional protocols associated with the Convention, and a host of other international covenants and standards provide a good practice basis for guiding national legal, policy and institutional reforms and frameworks. Constantly referring back to and testing various laws, policies and institutional structures against these internationally accepted standards is likely to be a feature of a child-friendly culture within a people-centred justice system.
Promoting the legal empowerment of children: a crucial element of providing access to justice is empowering people to participate in and manage their own affairs and have a voice in the design and delivery of processes and services that affect them. For children, this requires dedicated arrangements to ensure that the information, assistance, and support provided reflect their age, maturity and unique circumstances. A child-friendly culture will seek to provide for such appropriate empowerment.
Committing to learning what works from the child’s perspective: the culture must include a commitment to learning – through rigorous evaluation, research, user feedback, deep community engagement and data monitoring – what strategies and pathways are most effective, sustainable and appropriate for meeting the legal and justice needs of children and using this evidence-based approach to guide policy design and development.
Ensuring child-friendly arrangements are prioritised at all stages along relevant pathways: the growth of “human-centred design” concepts in recent years reflects the fact that many justice system processes have evolved from an institutional perspective rather than the perspective of the ordinary person. Services and processes impacting children need to be designed to be appropriate for them.
Promoting a whole-of-government and whole-of-state approach: while children may have fewer legal issues than adults, even they will have inter-twined legal issues (family, civil, criminal), as well as further inter-twined non-legal needs. The resolution of these legal and justice needs may only be possible with the resolution of other service problems. Therefore, a culture in which all parts of government, state and non-government agencies work together to resolve the problems experienced by children in a holistic way is essential.
Ensuring appropriate capability and development for actors involved in providing justice services: children confront the justice system and face legal problems at a unique disadvantage by virtue of age, capacity and maturity limitations. They must engage with many individuals, organisations and actors at all levels involved in providing justice services to children. These people and organisations have an important impact on children seeking to enforce their rights and resolve legal problems. They must have appropriate training and development to deliver child-friendly services within a people-centred environment.
Ensuring effective and sufficient resourcing while promoting efficiency and innovation: ensuring the capacity of the actors involved in addressing legal and justice needs for children also requires a sufficient level of staffing, expertise, skills, tools, equipment and other resources, which in turn requires adequate programme funding. For justice institutions at all levels, sufficient appropriately trained staff and resources must be allocated to ensure children’s legal and justice needs are met as efficiently and effectively as possible.
Source: (OECD forthcoming, 2023[2]), OECD Framework for Child-friendly Justice (forthcoming).
2.3.4. International legal framework
In its long-standing quest to improve the well-being of children, Egypt has become a party to the majority of the key existing international treaties related to child rights and protection in a wide spectrum of international fora. Egypt has ratified the Convention on the Rights of the Child (CRC) and two of its Optional Protocols, the African Charter on the Rights and Welfare of the Child (ACRWC) and other relevant international treaties.
In accordance with the Egyptian Constitution, ratified international and regional instruments enjoy the force of law and thus have the same status as national law and are directly enforceable by national courts and cited in court decisions (Constitute Project, 2022[16]). Egypt has further sought to implement and enforce the CRC into its own national legal framework, which is evident in the language used in both the Egyptian Constitution and the Child Law.
Egypt has ratified the following child-specific international and regional instruments:
The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography
The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict
The African Charter on the Rights and Welfare of the Child (ACRWC)
The International Labour Organisation Convention No. 182 (1999) concerning the Prohibition and Immediate Elimination of the Worst Forms of Child Labour
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention against Transnational Organized Crime.
Egypt has also ratified other significant international instruments that provide legal protection for children, among other rights holders. These include the following core international human rights instruments:
International Covenant on Economic, Social and Cultural Rights
International Convention on the Elimination of All Forms of Racial Discrimination
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Convention on the Elimination of All Forms of Discrimination against Women
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.
They also include the following selected instruments that have significant relevance to the rights of the child:
Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others
The Convention Relating to the Status of Refugees, as well as the 1967 Protocol
The International Labour Organisation Forced Labour Convention No. 29 and Abolition of Forced Labour Convention No. 105.
Sources: (OHCHR, n.d.[17]; International Justice Research Centre (IJRC), n.d.[18]).
In its commitment as a state party to the CRC, the ACRWC, and other international covenants, Egypt carries out periodic comprehensive reviews of national legislation to ensure full compliance with these international conventions, charters and other agreements. In the following sections of this report, these legal provisions and related treaties will be analysed more closely, including how they relate to criminal, civil, and administrative justice for children. There will then follow a review of the way national legislation applies to children and how national legislation reflects these international commitments.
Children in the criminal justice system
Child offenders and children in conflict with the law
Child justice policy must look at both prevention and intervention in child offending. When a child is alleged or accused of committing a criminal offence, both Article 14 of the International Covenant on Civil and Political Rights and Article 40(2) of the CRC set out a minimum list of rights and guarantees aimed to ensure that every child receives a fair trial and treatment. Children have the right to legal representation, consisting of: legal or other appropriate assistance needed before a hearing for the preparation and presentation of their defence; during the hearing; and after the hearing regarding the deprivation of liberty, either in a pre-trial facility or upon the pronouncement of a measure or sanction. This assistance ought to be: free of charge; provided by trained lawyers or legal professionals; accessible; age-appropriate; multidisciplinary; effective; and responsive to the specific legal and social needs of children. These guarantees are also found in other declarations and protocols related to child offenders.
In addition, several “soft law” international and regional instruments, such as the UN Rules for the Protection of Juveniles Deprived of their Liberty (1990) and the Guidelines on Action for Children in the Justice System in Africa (2012) further inform these rights and principles that should underlie the treatment of child offenders. Box 2.4 summarises the key instruments ratified or signed by Egypt in relation to this matter.
The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (2000)
The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (2000)
The International Covenant on Civil and Political Rights (1966)
The African Charter on the Rights and Welfare of the Child (ACRWC) (1990)
The African [Banjul] Charter on Human and Peo’les' Rights (1981).
Sources: (United Nations, n.d.[15]; Uited Nations, n.d.[19]).
Children in contact with the law: victims and witnesses of crime
Child victims and witnesses of crime are among the most vulnerable groups of children that come into contact with the justice system. The testimony of witnesses is often vital to investigate and prosecute a crime. However, their participation, whether when reporting the crime initially, giving a statement to the police or prosecutor, or in a court hearing, is usually a stressful experience.
Box 2.5 outlines the treaties ratified by Egypt that relate to child victims and witnesses. At the same time, different soft law instruments set out international standards in this area that will be taken into account in the analysis, including the aforementioned “Guidelines on Action for Children in the Justice System in Africa” (2012), the “Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems” (2012) and the UN Economic and Social Council Commission on Crime Prevention and Criminal Justice “Guidelines in Matters Involving Child Victims and Witnesses of Crime” (developed in the 14th session, Vienna, 23-27 May 2005). An additional important piece is the “Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children” (Palermo Protocol) in relation to child victims of trafficking.
Additional principles that should be taken into account include the CRC Committee General Comments No. 12 on children’s right to be heard (2009), No. 13 on the right of the child to freedom from all forms of violence (2011), and No. 14 on the right of the child to have their best interests taken as a primary consideration (2013) and No. 21 on children in street situations (2017) (United Nations, n.d.[20]).
The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (2000)
The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (2000)
The African Charter on the Rights and Welfare of the Child (ACRWC) (1990)
The African [Banjul] Charter on Human and Peoples' Rights (1981).
Sources: (United Nations, n.d.[15]; Uited Nations, n.d.[19]).
Children in civil and administrative proceedings
Both civil and administrative matters deeply and directly affect children involved in the proceedings. It is, therefore, very important that their views and opinions are heard and given due weight (Article 12 of the CRC), and all decisions must be made by giving paramount consideration to the child’s best interests (Article 3 of the CRC).
However, since the adoption of the CRC in 1989, the provisions related to the right of every child to participate meaningfully in the proceedings and to have their best interests taken as a primary consideration in all actions concerning them have proved challenging to implement. Even though the CRC principles have been, to a certain extent, adopted at the national level throughout the world, their implementation currently widely varies as there seems to be no common understanding among professionals on how these principles should be applied in practice.
The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (2000)
The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (2000)
The African Charter on the Rights and Welfare of the Child (ACRWC) (1990)
The African [Banjul] Charter on Human and Peoples' Rights (1981).
Source: (United Nations, n.d.[20]), UN Treaty Body Database, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=5&DocTypeID=11.
2.3.5. National legal framework: focus on the Constitution and the Child Law
Egypt has taken key steps at the national level towards safeguarding children’s rights, ensuring the prioritisation of their best interests in respect of all decisions that affect them, and realising an effective system of protection, in particular, when they come into contact with the authorities. Following the above analysis in relation to the ratification of international instruments, this section analyses the promulgation of national legislation, including Egypt’s constitution, laws, executive bylaws and instructions. Within each category, some instruments and pieces of legislation pertain specifically and exclusively to children, while others concern children among other rights holders.
Fundamental national laws: the Egyptian Constitution and the Child Law
As mentioned above, Egypt has made efforts to reflect international standards in its national legislation. For instance, both the Constitution and the Child Law (No. 12/1996, updated by law No. 126/2008) reflect Egypt’s express adoption of the “best interests of the child” principle.6 Most importantly, the Constitution dedicates a detailed article entitled “Rights of the Child”, which provides the principles that shall guide legislation and policy in various areas concerning children. These principles include: ensuring the fulfilment of rights to health and nutrition, education and housing; establishing restrictions on child labour; ensuring protection from various forms of violence, abuse and exploitation; and setting the general framework for a child-friendly justice system(see Box 2.7).7
According to Article 80 of the Constitution:
A child is considered to be anyone who has not reached 18 years of age. Children have the right to be named and possess identification papers, have access to free compulsory vaccinations, health and family care or an alternative, basic nutrition, safe shelter, religious education, and emotional and cognitive development.
The State guarantees the rights of children who have disabilities and ensures their rehabilitation and integration into society.
The State shall care for children and protect them from all forms of violence, abuse, mistreatment, and commercial and sexual exploitation.
Every child is entitled to early education in a childhood centre until the age of 6. It is prohibited to employ children before they reach the age of having completed their basic education (15 years) or to employ them in jobs that expose them to risk.
The State shall establish a judicial system for child victims and witnesses. No child may be held criminally responsible or detained except in accordance with the law and the timeframe specified therein.
Legal aid shall be provided to children, and they shall be detained in appropriate locations separate from adult detention centres.
The State shall work to achieve children’s best interests in all measures taken with regards to them.
Source: Egyptian Constitution, Art. 80.
Following on from the Constitution, it is appropriate to consider the most important child-specific legislation in Egypt, the Child Law. Its provisions automatically override the application of other laws that otherwise apply to individuals within the jurisdiction of Egypt unless the Child Law leaves a matter – expressly or implicitly – to the general rules provided for in other laws. In addition to restricting the application of general rules in some instances and extending such rules to children in others, the Child Law defines the role of certain entities and mandates the promulgation of further subordinate legislation. Enacted in 1996 and reinforced with significant structural amendments in 2008, the Child Law is divided into nine parts:
Part I on setting general principles for ensuring the well-being of the child and guaranteeing their right to survive and develop
Part II on regulating birth and identity registration, and providing rules to ensure the realisation of the right to health, including rights to nutrition and free vaccination
Part III on providing provisions for the social welfare of the child, including the regulation of nurseries, alternative care and the protection of children from traffic risks
Part V on regulating and ensuring the well-being of the working child and working mother
Part VI on providing general principles and specific rules pertaining to the well-being and protection of children with disabilities
Part VII on setting principles and rules on the State’s obligation to satisfy the cultural needs of the child, regulating artistic and cultural products addressing the child, and providing criminal sanctions for violations of the latter regulation
Part VIII (added in its entirety by virtue of the 2008 amendments) on providing a comprehensive framework for criminal justice, specifically in relation to children at risk, child victims of crime, child witnesses to crime, and children who have infringed the penal law
The Child Law also illustrates key definitions that relate to children and will be used throughout this strategic review (see Box 2.8).
When in contact with justice authorities, including but not limited to judges, prosecutors and law enforcement agencies, it is critical that children have access to suitable legal assistance. Under international law, children have the right to legal aid free of charge in any judicial or administrative proceedings that concern them, which is state-funded, of high quality and available at all stages of the process. It is critical to stress that governments must ensure that the legal aid provided is child-friendly, accessible, age-appropriate, multidisciplinary, effective and responsive to the specific legal and social needs of children.
Finally, in addition to the Child Law, other laws establish child-specific legislation that overrides general provisions contained in other laws. The following sections provide a detailed account of this legal structure relevant to children in Egypt.
A child, according to the Child Law, is any person who “has not reached the age of eighteen (18)”. Means of verification of such age shall be “a birth certificate, an identification card, or any other official document”, while “[i]n the absence of an official document, an authorised entity shall determine the age, by virtue of a decree issued by the Minister of Justice in agreement with the Minister of Health.”1
A “child at risk” is a child that is “exposed to a situation threatening the sound upbringing” that should be made available to him/her. Article 96 of the Child Law provides an exhaustive list of those that come under this definition, some of which are general while others are specific. For instance, this category includes children whose “safety, morals, health, or life are at risk” and the circumstances and persons who place them “at risk” or expose them “to neglect, abuse, violence, exploitation, or vagrancy” whether in the family, or at school, or in care institutions or by others.2 The Article then goes as specific as considering at risk any child who is “found begging”, “collect[ing] cigarette butts, or any other kind of trash or waste”, or “has no permanent residence, or generally sleeps in the streets”.3
A “child in conflict with the law” is referred to in the Child Law as a “child offender”. This category refers to every person who has not yet attained the age of 18 years and is in contact with the criminal justice system on account of being accused or suspected of committing a crime under domestic law. Children who commit a crime are, under the Child Law, divided into four age groups aimed at distinguishing between the different levels of awareness and needs of each child based on their age. These age groups refer to the child’s age at the time of the offence. The age groups are as follows:
The first age group of “less than 7 years” includes all those who have not yet attained the age of 7. It should be noted that where those who belong to this age group commit a crime, they may not be deemed an “offender” under Egyptian Law; instead, they are considered “at risk” under Article 96 of the Child Law.
The second age group, “7-11 years”, includes any child who has attained the age of 7 but has not yet attained the age of 12.
The third age group, “12-14 years”, includes any child who has attained the age of 12 but has not yet attained the age of 15.
The final age group, “15-17 years”, includes any child who has reached the age of 15 but has not yet completed the age of 18. Any person who has already completed the age of 18 at the time of the incident is not subject to the jurisdiction or scope of the Egyptian Child Law.
← 1. Child Law, Art. 2; See also Egyptian Constitution, Art. 80.
← 2. Child Law, Art. 96 (1), (2).
← 3. Child Law, Art. 96 (7)-(9).
Source: Egypt’s Child Law.
In Egypt, the terms “child victim” and “child witness” are not legally defined. The Court of Cassation, however, defines the “victim” as “the person who forms the object of the legally criminalised act or abstention (…), and this person himself is the object of the legal protection that the Legislator seeks to establish.”8 Consequently, the “child victim” is every “child” that falls within this definition of “victim”. The “child witness” is similarly not defined under any Egyptian legislation, however, the Court of Cassation has ruled that “the Code of Criminal Procedure has in Article 283 considered a person to be a witness when he has been called to perform a testimony (…)”.9 Therefore, the “child witness” is every “child” that falls within this definition of “witness”. It should be noted that this narrow definition may leave some child witnesses without appropriate legal protection.
The legal framework applicable to child victims and witnesses
The main pieces of legislation in this regard are Article 80 of the Constitution, the Child Law, the Code of Criminal Procedure, Law No. 58/1937 Promulgating the Penal Code,10 Law No. 10/2018 Promulgating the Law of the Rights of Persons with Disability,11 and other specific penal legislation seeking to protect child victims of certain crimes. The Egyptian Constitution declares that the “State shall establish a judicial system for child victims and witnesses.”12 The legal provisions relevant to child victims and witnesses can be divided into: i) provisions criminalising acts or providing harsher penalties for criminalised acts when committed against a child; and, ii) provisions establishing procedural and substantive protection for child victims and witnesses.
In the first category, several articles under the Child Law criminalise acts or provide for harsher penalties for criminalised acts when committed against a child, such as exposing a child to risk, broadcasting audio or visual materials deemed inappropriate for a child, instigating a child to commit a crime and sexually exploiting a child.13 While the Penal Code contains several provisions to enable harsher punishments where the crime is perpetrated against a child, other specialised pieces of penal legislation undertake a similar task. For instance, Law No. 64/2010 Concerning Human Trafficking does not recognise “consent” where the victim is a child and establishes a harsher penalty against those who commit acts criminalised under the Law against children.14
In the second category, recent legislative developments in Egypt have introduced significant reform concerning procedural and substantive protection of child victims and witnesses. The Child Law contains a number of provisions pertaining to child victims and witnesses. Article 96 considers a child victim to be “at risk” and to consequently enjoy legal protection for children falling in this category. Article 116 bis(d) establishes that “[c]hild victims and witnesses of crime, at all stages of arrest, investigation, trial, and implementation, shall have the right to be heard, and to be treated with dignity and sympathy with full respect for their physical, psychological, and moral safety, and shall have the right to protection, to health, social and legal assistance, to rehabilitation, and integration in the society, in accordance with the United Nations Guidelines on Justice for Child Victims and Witnesses of Crime.” This Article permits the judiciary to borrow from international treaties enforceable in Egypt by virtue of its Constitution and the international soft law contained in the UN Guidelines in this regard.
Child victims and witnesses shall enjoy the right to be treated with dignity and empathy, to be listened to, to be communicated with in a language they understand, and to receive appropriate assistance.15 This right shall be adapted appropriately to the needs of the individual where the victim or witness is a child with a disability.16 The right to receive legal assistance is further enshrined in several laws, including those addressing children in general,17 children with disabilities18 and children who may be vulnerable by virtue of the crime to which they are subjected, such as those coming into contact with the authorities by reason of an incident under the Law on Combatting Human Trafficking and the Law Combatting Illegal Migration and Smuggling of Migrants.19 Child victims and witnesses shall further enjoy protection of their data and privacy, and any violation of this right is punishable, in some instances by imprisonment.20
Child victims and witnesses further enjoy the right to security and to benefit from special precautionary measures.21 This is translated into specific measures of protection to be taken in favour of children. The PPO is required by law, and in accordance with the prosecutor’s instructions, to undertake the necessary legal proceedings towards prosecuting those responsible for exposing a child to risk, particularly where the victim is a child with a disability.22 Other measures, however, pertain directly to the child. Where a child is found to be “at risk” under the Child Law or the Law on Rights of Persons with Disability,23 the deputy prosecutor shall, in accordance with the instructions of the General Prosecutor, refer the child to the general or sub-CPC.24 The Child Law lays out the regime of CPCs which shall provide protection to those “at risk,” including children victims of abuse or violence.25 Deputy prosecutors shall further co-operate with the Child Helpline of NCCM26 towards undertaking the necessary and urgent measures to protect the child victim and at risk.27
Regarding the right to compensation, the Code of Criminal Procedure confers upon the competent Criminal Court the power to appoint a lawyer to initiate proceedings before the civil judiciary in favour of child victims who otherwise have no access to legal assistance.28 Children, as a general rule, are exempt from judicial expenses.29
In addition to the above, the Ministry of Justice has, in 2019, adopted the Guidelines for Procedural Rights of Child Victims and Witnesses to Crimes in co-operation with the United Nations Children’s Fund (UNICEF).30 In this soft law document, the Ministry outlines the international and national legal frameworks applicable in this regard, followed by specific guidelines to judges based on the UN Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime.
Arrest, pre-trial detention and detention of child offenders
With regard to the rules and procedures of arrest and detention of child offenders, Egypt’s Child Law sets out, on the one hand, some rules and guidelines which distinguish children from adults. On the other hand, some matters are left without any child-specific guidelines, and the Child Law refers instead to the application of the Code of Criminal Procedure No. 50/1950 and the Penal Code No. 58/1937.31 Except for cases of flagrante delicto, Article 54 of the Constitution prohibits authorities to “arrest, search, detain, or restrict the freedom of anyone in any way except by virtue of a reasoned judicial order that was required in the context of an investigation.”32 The same content is reflected in the Code of Criminal Procedure, albeit in further detail.33 According to the Code of Criminal Procedure, arrest without warrant is only permitted in the exceptional circumstance of flagrante delicto,34 and it adds that anyone arrested must be brought before the prosecution within 24 hours of his or her arrest, otherwise, the detention loses its legal grounds.35 The law further obliges the prosecution to interrogate the accused and order their arrest or release within 24 hours from referral by the police.36
In the case of an order for pre-trial detention, the Child Law prohibits detention for those who have not yet reached 15 years of age at the time of the commission of the crime.37 The only measure, which may be exclusively resorted to in order to prescribe physical detention for those who have not yet reached 15 years of age, is the measure of “placement” in care institutions,38 and this measure may, in principle, not be applied to children below the age of criminal responsibility. In practice, however, in some cases, the Court may resort to a placement arrangement for a child between the ages of 7-12 years, drawing on the stipulation of the second paragraph of Article 94, which permits the Child Court to order the placement of a child in conflict with the law who falls within this age group if the person in charge of the child is not known.
With regards to places of detention, the Child Law explicitly states that children may not be detained or imprisoned with adults at the same place. According to the explanatory note of the law, the rationale is to avoid possible negative psychological consequences as well as possible violations children may be exposed to while in detention with adults.39 According to the Law, officials violating the obligation to separate children from adults while in detention shall be sentenced to imprisonment.40 The law obliges officials in charge of detaining accused children to consider the classification of children by age, gender and offence.41
With regard to pre-trial detention for children who have reached the age of 15 years, the law does not distinguish between children and adults. In this regard, there is room for improvement by making a distinction between adults and children in respect of both the grounds for and the maximum duration of pre-trial detention which are currently the same.
The Code of Criminal Procedure holds no distinction between children and adults and restricts the grounds for pre-trial detention and its extension to the following scenarios:42
the crime was caught flagrante delicto, and a measure must be implemented immediately;
concern that the interest of the investigation would be compromised, whether by influencing victims or witnesses, tampering with material evidence or concluding agreements with other criminals to alter or efface facts;
to prevent a serious breach of public security or public order, a factor that may be determined based on the gravity of the crime.
If the case involves none of the previously mentioned scenarios, the accused must be released pending trial. Release, in this case, does not mean that the person is acquitted, nor does it imply that the case is dismissed. Release pending trial means that the accused continues to enjoy their personal liberty up until the investigation and trial proceedings are completed and a judicial verdict is reached, whether it be a conviction leading to a sentence, an acquittal or any other verdict.
With regard to periods of pre-trial detention, the Code of Criminal Procedure43 provides the following limitations:
During the investigation phase, the pre-trial detention period may not exceed three months if the offence is a misdemeanour, after which the prosecution must either refer the case to court or release the accused. This aspect is also regulated in Article 119 of the Child Law.
During the investigation phase, if the offence is a felony, pre-trial detention may not exceed five months before the prosecution either refers the case to trial or obtains a decision to extend the pre-trial detention from the competent court.
The Code of Criminal Procedure sets the maximum duration of pre-trial detention for all stages, including the investigation and trial stages, which must not exceed one-third of the maximum penalty for the offence under investigation, or "not to exceed six months for misdemeanours and eighteen months for felonies and two years if the felony is punishable by life imprisonment or the death penalty”, whichever is the lesser.
Children who have not yet reached the age of 15 may be subject to a restriction of physical liberty.44 Indeed, a child in violation of the law may be placed if the proceedings of the case so require and he/she has reached 15 years of age. This may be ordered by the prosecution or the court during the investigation or trial stages, initially for seven days. Placement is, however, renewable subject to the general rules governing pre-trial detention under the Code of Criminal Procedure,45 as clarified in the previous two paragraphs.
Moving to deprivation of liberty by a judicial ruling and sentencing, the Child Law establishes that only those who have reached the age of 12 shall be subject to criminal responsibility.46 Even though the inapplicability of criminal responsibility means a child may not be convicted in principle, the Law allows measures of rebuke, delivery or placement in a social care institution in case the offence in question constitutes a misdemeanour or a felony and is committed by a child aged between 7-12 years at the time the offence is committed. Egypt’s Child Law obliges courts to resort to “placement in a care institution” only as a measure of last resort and for the shortest appropriate period.47
For children in the age group 12-14 years at the time the crime was committed, the Child Law adopts several non-custodial sentences under the name “alternative measures”, adding to the standard measures which a court may order, including: enrolment into training and rehabilitation programmes; obligation to undertake certain duties; judicial probation; or the obligation to undertake other community services. As for children in the age group 15-17 years who commit a crime punishable by the death penalty, life imprisonment or “aggravated imprisonment”, the law establishes that the highest applicable sentence for them is imprisonment for at least 3 years and up to a maximum of 15 years.48 If the crime is punishable by imprisonment for 3 years or more, the court shall order imprisonment for a period of not less than 3 months and not more than 3 years, or placement in an institution as a substitute measure.
If a child in the age group 15-17 years commits a misdemeanour punishable by imprisonment for less than three years, the court may, instead of handing them a prison sentence, order a judicial probation, work for a public utility or placement in a care institution.49 Generally, the Child Law explicitly prohibits issuing the death penalty, life or severe imprisonment sentences against a child.50 It should be recalled that the principles governing the Child Law are also applicable when punishment is ordered against a child, the most important of which is that “the best interests” of the child shall be a primary consideration in all judicial proceedings.51
Restorative justice and diversion
The Egyptian Law does not currently present a diversion of children away from formal justice authorities and does not adopt the concept of restorative justice. However, it is worth noting recent efforts towards employing restorative justice for children, including the restorative justice pilot trialled in Alexandria in 2018 and the ongoing discussions in governmental entities to introduce restorative justice into the Child Law, as mentioned below.
Although both “restorative justice” and “diversion” do not appear in Egypt’s legal texts, a pilot project to execute measures of diversion with a restorative justice approach took place in Alexandria from November 2018. The Child Law refers any matter unregulated in its provisions to the general rules provided for in the Code of Criminal Procedure and the Penal Code, which was therefore considered the legal basis of the project.52 Further, it establishes that the “provisions for the dismissal of a criminal case, in case of conciliation or reconciliation, as decreed in the Criminal Procedure Code or any other law, shall prevail for crimes committed by a child”.53 Under the Code of Criminal Procedure, reconciliation is divided into two types: i) reconciliation performed and documented by the victims or their heirs before the prosecution or court in a limited number of offences (for instance, the crime of “theft” does not fall within the scope of crime that might be subject to reconciliation); and ii) reconciliation that is performed by the accused.54 Concerning this second type, reconciliation is possible in instances of violations or misdemeanours if the offence is not punishable by anything other than a fine or if it is punishable by imprisonment for a period that does not exceed six months. Bearing these two possibilities in mind, reconciliation or conciliation is legally permissible in a very limited number of cases.
As a matter of prosecutorial policy, however, in 2018, Egypt gave the green light to the above-mentioned restorative justice pilot in Alexandria. Drawing on the margin of discretion that the Code of Criminal Procedure confers upon the PPO to dismiss a case following an investigation and subsequently release the accused person,55 the PPO issued Circular No. 7 of 2018, confirming in Article 21 the need to:
“Activate the positive role of the members of the child prosecution offices in the area of restorative justice to limit the referal of children to child courts in none serious crimes that can be solved directly through conciliation in accordance with the law or cases where the public prosecution may choose to decide not to institute criminal proceedings or to close an investigation on the basis of lack of gravity of the crime.”
Therefore, the prosecutor distinguishes here between the crimes in which the criminal proceedings are adjudicated by law, reconciliation or conciliation, and those that may not be terminated by the process of reconciliation but lose their relevance due to conciliation, where in the latter case, the prosecution may decide not to institute criminal proceedings and close the case.
The success of the pilot project, at least in its initial phases, has motivated the government to work on institutionalising measures of diversion, rather than depending on the fragmented legal framework that has been carved around Articles 116 bis(c) and 143 of the Child Law and 118, 154 and 209 of the Code of Criminal Procedure. Since 2020, various government committees have been discussing a draft law, introducing amendments to the Child Law in this regard. The governmental bodies involved in this task are the Ministry of Justice, the PPO, the MoSS and the NCCM.
Legal status of the child
In accordance with international standards, a key aspect of children’s rights in a country is their legal status as rights-bearers. In this vein, according to international law and standards, children should be able to initiate legal action by themselves in their own name, acting through a representative of their own choosing, alone or together with their parents or guardians. Representation by an adult should not be required but is allowed if the child requests it.
In this regard, Article 3c of the Child Law states that this Law reinforces the right of the child to form his own opinions, to access information which empowers him to form and express such opinions, and to be heard in all matters related to him, including judicial and administrative procedures, in accordance with the procedures specified by the Law.
According to Article 116 bis, the child victims and witnesses of crime, at all stages of arrest, investigation, trial, and implementation, shall have the right to be heard and to be treated with dignity and sympathy with full respect for their physical, psychological, and moral safety, and shall have the right to protection, to health, social and legal assistance, to rehabilitation and integration in society, in accordance with the UN Guidelines on Justice for Child Victims and Witnesses of Crime.
Having highlighted the above principles enshrined in the Child Law, it is appropriate to demonstrate how those principles are, in fact, already subject to limitations provided for in other rules found in the Child Law itself, the Code of Criminal Procedure and other laws regulating civil litigation, such as the Code of Personal Status. As children are legally deemed to be persons with limited capacity to obtain rights on their own, bind themselves by obligations and take or participate in legal action, they can face challenges with regard to their right to be heard and to undertake legal action.
The general rule in Egypt is that those who have not attained the age of full legal capacity, 21 years, may only perform the right to litigate before Civil or Administrative Courts through a legal representative who is their natural or legal guardian. This rule can be found, along with all rules regarding “procedural capacity”, in the Civil Code.56 An exception to this rule, however, is established in respect of litigation in relation to matters of personal status, including, for instance, inheritance-related matters, and in favour of those who have reached the age of 15 years and possess full mental capacity.57 Otherwise, according to the Law Regulating Some Matters and Proceedings of Personal Status-Related Litigation, children who have not reached the age of 15 years, and all persons lacking mental capacity, are automatically deemed to lack the capacity to litigate in matters related to their ability to administer their money, including in personal status matters. This includes their inability to initiate civil proceedings in their favour or execute the right to appeal any decision that concerns them. The natural or legal guardian shall be the child’s legal representative and shall exercise such rights on him or her behalf. In case the child does not have a person that represents him or her legally, or in case there is a reason to proceed with legal action against the opinion of the legal representative, the court may appoint a legal guardian to represent the child in a given lawsuit, and this may take place on the court’s own initiative, or following a request by the prosecution or a third party.
It is worth noting that Article 131 of the Child Law, which is relevant to all proceedings regarding children and all judgments passed concerning them, establishes that such proceedings and judgments shall be notified to one of their parents, a guardian or some other person responsible for them. Each of these people shall have the right to appeal such proceedings on behalf and in favour of the child.
Regarding the legal status of the child victim and the extent to which they are heard in criminal proceedings, the Code of Criminal Procedure provides specific rules on complaints by victims who have not yet attained the age of 15 years or have a mental disability. Articles 5 and 6 establish that such complaints may only be heard when presented by the guardian or the trustee of the child. In case of a conflict of interests between the child and their representative, the PPO shall represent the child’s right to legal assistance.
In Egypt, free access to the justice system and legal aid are constitutional rights.58 Article 54 of the Egyptian Constitution guarantees free access to the justice system and Article 97 stipulates that litigation is a protected and guaranteed right for all. The State is under the obligation to make judicial institutions more accessible to citizens and increase the timeliness and effectiveness of conflict resolution. In addition, the State is required to ensure judicial supervision of all acts or administrative decisions and to try a person only before a competent authority, and extraordinary courts are prohibited. The State shall guarantee the accessibility of judicature for litigants and rapid adjudication on cases.” The right to counsel and legal aid is also safeguarded. According to Article 125 of the Child Law, the child has the right to legal assistance. Children shall be represented in criminal and misdemeanour cases attracting a custodial penalty by a lawyer to defend them in both the investigation and trial phases. If no lawyer has been selected by the child, the PPO or the court shall appoint one in accordance with the rules and regulations of the Criminal Procedure Code. The implementation of these aspects in practice are further studied in Chapters 4 and 5.
Ongoing review of the Child Law
The Child Law is currently under review by the Coordinating Committee for Criminal Justice for Children as per resolution No. 189 of the Minister of Social Solidarity dated 3/4/2023. The Committee is chaired by the Ministry of Social Solidarity and includes the Ministries of Justice, Interior, Education, Foreign Affairs, the Public Prosecution, the National Council for Childhood and Motherhood, and the Supreme Council of Universities. In addition to workshops to discuss and define the roles of national agencies working in the criminal justice pathway, the committee discusses possible amendments to the Child Law related to Section 8 on criminal justice.
The discussed amendments include changes to child judicial treatment, restorative justice, and Child Protection Committees. The Committee in charge of the ongoing review of the Child Law will also discuss and potentially amend the regulations of penal institutions as well as open and semi-closed institutions.
Key recommendations
Maintain the current commitment at the highest political level to lead the child-friendly justice transformation and to strengthen a child rights culture in Egypt, building on the child protection provisions in the National Child Strategy, Human Rights Strategy, and Egypt’s Vision 2030.
Increasingly recognise and build on the link between access to justice for children, achievement of the United Nations (UN) 2030 Agenda, broader societal objectives, and fiscal efficiencies in national plans and strategies.
Strengthen the child rights culture in Egypt by developing local and national outreach initiatives to raise awareness of children’s rights and existing protection mechanisms.
Ensure that efforts in developing the new implementation plan for the National Child Strategy, as well as towards legislative reform in the area of child justice, are co-ordinated among the key stakeholders and adopt a child-centred, inclusive, and participatory approach underpinned by monitoring and evaluation of the previous Implementation Plan.
References
[11] Balmer, N. and P. Pleasence (2012), The Legal Problems and Mental Health Needs of Youth Advice Service Users, https://baringfoundation.org.uk/wp-content/uploads/2014/09/YAdviceMHealth.pdf.
[16] Constitute Project (2022), Egyptian Constitution 2014, http://www.constituteproject.org/constitution/Egypt_2014.pdf.
[13] Council of Europe (2010), Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice, https://rm.coe.int/16804b2cf3.
[14] Davidson, J. et al. (2019), Justice for Children, Justice for All: The Challenge to Achieve SDG16+ Call to Action, CELCIS - Inspiring Children’s Futures.
[18] International Justice Research Centre (IJRC) (n.d.), “Children’s Rights”, Thematic Reserach Guides, https://ijrcenter.org/thematic-research-guides/childrens-rights/.
[4] Kendrick, J. (2011), The outcomes and impact of youth advice: the evidence, Youth Access, https://baringfoundation.org.uk/resource/the-outcomes-impact-of-youth-advice-the-evidence/.
[9] Leckie, C., R. Munro and M. Pragnell (n.d.), Defending the public purse: The economic value of the free legal advice sector, Pragmatix Advisory Limited, https://cebr.com/reports/defending-the-public-purse-the-economic-value-of-the-free-legal-advice-sector/.
[1] OECD (2021), OECD Framework and Good Practice Principles for People-Centred Justice, OECD Publishing, Paris, https://doi.org/10.1787/cdc3bde7-en.
[8] OECD (2019), Building a business case for access to justice, OECD White Paper, https://www.oecd.org/gov/building-a-business-case-for-access-to-justice.pdf.
[3] OECD (2019), Equal Access to Justice for Inclusive Growth: Putting People at the Centre, OECD Publishing, Paris, https://doi.org/10.1787/597f5b7f-en.
[2] OECD forthcoming (2023), OECD Framework for Child-friendly Justice (forthcoming).
[17] OHCHR (n.d.), The Core International Human Rights Instruments and their monitoring bodies, https://www.ohchr.org/en/core-international-human-rights-instruments-and-their-monitoring-bodies.
[10] Sefton, M. (2010), With Rights In Mind: Is there a role for social welfare law advice in improving young people’s mental health? A review of evidence.
[6] The Supreme Standing Committee for Human Rights (SSCHR) (n.d.), , National Human Rights Strategy.
[19] Uited Nations (n.d.), United Nations Human Rights Treaty Bodies - African Treaties, https://au.int/sites/default/files/treaties/36804-sl-AFRICAN%20CHARTER%20ON%20THE%20RIGHTS%20AND%20WELFARE%20OF%20THE%20CHILD.pdf.
[7] UNICEF (2017), Egypt Census data as analysed by UNICEF, https://www.capmas.gov.eg/Admin/News/PressRelease/20171120131017_Child%20Rights%20International%20Day2017.pdf?msclkid=69b16b54cf7e11ecb4565fbb87886c36.
[20] United Nations (n.d.), UN Treaty Body Database, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=5&DocTypeID=11.
[15] United Nations (n.d.), United Nations Human Rights Treaty Bodies - Egyptian Treaties, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC/C/EGY/CO/3-4&Lang=En.
[5] Woodhead, C. et al. (2022), “social welfare advice and health among young people: a scoping review”, Journal of Social Welfare and Family Law, Vol. 44/1, pp. 103-123, https://doi.org/10.1080/09649069.2022.2028409.
[12] Youth Access (2015), The social determinants of young people’s mental health., https://www.youthaccess.org.uk/publications/research-evaluation/social-determinants-young-peoples-mental-health.
Notes
← 1. A person with low legal capability refers to an individual that has a limited understanding of his rights and duties as per the law. In some contexts, this term can also refer to clients that are minors or suffer from limited mental capacity.
← 2. National Council for Childhood and Motherhood, National Council for Childhood and Motherhood, Strategic framework for Childhood and Motherhood (2018 - 2030) as well as the National Plan (2018 -2022).
← 3. See, for instance, information about the latest Roundtable that took place on 21-23 September, 2022 in Riga, Latvia: www.oecd.org/governance/global-roundtables-access-to-justice/oecdrigaglobalaccesstojusticeroundtable2022.htm.
← 4. For further information see https://justicewithchildren.org/online-2021/.
← 5. CRC/C/EGY/CO/3-4, (United Nations, n.d.[15]).
← 6. Egyptian Constitution, Art. 80; Law No. 12 of 1996 Promulgating the Child Law (Amended by Law No. 126 of 2008), Arts. 1, 3; available at: www.nccm-egypt.org/e7/e2498/e2691/infoboxContent2692/ChildLawno126english_eng.pdf.
← 7. Egyptian Constitution, Art. 80.
← 8. Case No. 2073 of Judicial Year 29, Criminal Circuits, Court of Cassation, 2 Feb 1960, Technical Bureau (Year 11, Rule 29, p. 142), available at: www.cc.gov.eg/judgment_single?id=111242132&ja=70017.
← 9. Case 1280 of Judicial Year 61, Criminal Circuits, Court of Cassation, 9 Nov 1992, Technical Bureau (Year 43, Rule 156, p. 1014), available at: www.cc.gov.eg/judgment_single?id=111117756&ja=13661.
← 10. Penal Code, available at: https://manshurat.org/node/14677.
← 11. Rights of Persons with Disability Law, available at: https://manshurat.org/node/25895.
← 12. Egyptian Constitution, Art. 80.
← 13. Child Law, Arts. 89-92, 96, 116 bis, 116 bis(a).
← 14. Law on Combating Human Trafficking Law, Arts. 3, 6(6), available at: https://manshurat.org/node/778.
← 15. Child Law, Arts. 1, 3(d) 116 bis(d); Code of Criminal Procedure, Arts. 5, 6, 24, 25, 29, 283.
← 16. Law of the Rights of Persons with Disability, Art. 35, 36.
← 17. Child Law, Art. 116(d).
← 18. Rights of Persons with Disability Law, Art. 35.
← 19. Law No. 64/2010 Concerning Human Trafficking expressly guarantees the right of victims and witnesses to legal assistance, and Law No. 82/2016 Promulgating the Law on Combatting Illegal Migration and Smuggling of Migrants requires the NCCM to legally represent unaccompanied child migrants. Law on Combating Human Trafficking Law, Art. 23; Law on Law on Combatting Illegal Migration and Smuggling of Migrants, Art. 3.
← 20. Code of Criminal Procedure 113 bis; Child Law, Art. 116 bis(b); Law Combatting Human Trafficking, Art. 9.
← 21. Code of Criminal Procedure, Art. 365; Child Law, Arts. 3(a), 116 bis(d).
← 22. Child Law, Art. 96; Rights of Persons with Disability Law, Art. 46-7; Art. 7, Circular No. 7 of 2018, Office of the Prosecutor.
← 23. Child Law, Art. 96; Law on Rights of Persons with Disability, Art. 46.
← 24. Art. 1, Circular No. 7 of 2018, Office of the Prosecutor.
← 25. Child Law, Arts. 97, 98.
← 26. According to Article 97 of the Child Law, “NCCM shall establish a General Department for Child Helpline, mandated to receive children and adults’ complaints, and handle them efficiently to protect children from all forms of violence, risks, or neglect.”
← 27. Art. 2, Circular No. 7 of 2018, Office of the Prosecutor.
← 28. Code of Criminal Procedure, Art. 252.
← 29. Child Law, Art. 140.
← 30. Available at: www.unicef.org/egypt/media/6581/file/MoJ.pdf.
← 31. Child Law, Art. 143.
← 32. Constitution of Egypt, 2014, Art. 54.
← 33. Code of Criminal Procedure Art. 34, 36, 37 and 40.
← 34. Code of Criminal Procedure, Art. 40.
← 35. Code of Criminal Procedure, Art. 36.
← 36. Code of Criminal Procedure, Art. 36.
← 37. Child Law, Art. 119.
← 38. Child Law, Art. 119.
← 39. Egyptian National Council for Women, Explanatory Note for Proposed Amendments to the Egyptian Child Law, p. 3.
← 40. Article (112), Child Law.
← 41. Ibid.
← 42. Code of Criminal Procedure, Art. 134.
← 43. Code of Criminal Procedure, Art. 143.
← 44. Child Law, Art. 119.
← 45. Child Law, Art. 119.
← 46. Child Law, Art. 94.
← 47. Child Law, Art. 107.
← 48. Imprisonment, in Egyptian legal terms, refers to depriving a convicted person of their liberty for a term of 3-15 years.
← 49. Child Law, Art. 111.
← 50. Child Law, Art. 111.
← 51. Child Law, Art. 3.
← 52. Child Law, Art. 143.
← 53. Child Law, 116 bis(c).
← 54. Code of Criminal Procedure; 18 bis.
← 55. Code of Criminal Procedure, Arts. 154, 209.
← 56. Civil Code, Art. 44-7.
← 57. Law No. 1/2000 Regulating Some Matters and Proceedings of Personal Status-Related Litigation, Art. 2.
← 58. www.iedja.org/wp-content/uploads/2018/02/egypt-access-to-justice-system-1my.pdf.