Fulfilling children's rights in the contexts of legal pluralism
Legal pluralism is the existence of multiple legal systems within a specific population or geographical area. These systems have largely developed through colonialism, customary traditions and practices, and religious laws, but they produce a slew of complications in the face of access to justice when pursued by children, including questions of protective safeguards based on children’s rights, applicability of child-friendly justice procedures and standards, conflicts of laws and inconsistencies leading to confusion, and inherent discrimination that may be embedded in plural legal systems.
However, when done correctly, the integration of indigenous and customary justice elements and the inclusion of customary norms into state laws can support the best interests of the child and safeguard the child’s cultural heritage and customs.[i] The complexity arising from legal pluralism should be taken into account in order to provide children with equal protection regardless of which system addresses the issues they face, whether the justice, welfare, or social protection systems.
[i] E.g., the Canadian child welfare system developed a model that is characterised by a community-based approach aiming to help indigenous communities overcome critical challenges such as poor housing conditions and high rates of alcohol and substance abuse. Cf. Gagnon, Indigenous Justice and Restorative approach, American Preparatory Meeting, December 11, 2020.
Disclaimer: Authors are the Global Initiative on Justice with Children with pro-bono support from Baker McKenzie. This section represents one among other positions of some members of the World Congress Consortium and does not necessarily represent the view of all institutions and members involved.