Policy Papers
In addition to maintaining a Policy Agenda, the NACC periodically produces policy papers and letters on particular issues.
NACC Policy Statement:
Confidentiality of Juvenile Court Proceedings and Records
Adopted by NACC Board of Directors April 25, 1998
I. Background
Proceedings and records in juvenile court (child protection and delinquency) cases are confidential in most jurisdictions. However, many have advocated opening up those proceedings and/or records to some extent, and some have advocated opening all of them up to everyone. The opening of juvenile delinquency records and/or proceedings is a major issue in pending federal legislation, and has been considered or is being considered in many states; the opening of child protection records and/or proceedings has also been considered in several states. In the process of determining an appropriate position for NACC to take on this issue, the NACC Board of Directors has considered the "pros and cons" of confidentiality in child protection cases and juvenile delinquency cases, as follows:
A. Child Protection Cases
1. Pro-Confidentiality of Proceedings/Records
Opening would deter children from reporting abuse, and parents from seeking help;
Opening would cause process-trauma to child victims/witnesses;
Opening would deter parents from admitting abuse/neglect (a key to the treatment process);
Opening would cause public stigmatization of the child and family;
Opening would result in privacy intrusions regarding extremely personal matters of the family;
Difficulty (and potential confusion) in determining which records/proceedings should be opened;
Insensitivity in the media about publishing names of children and families.
2. Pro-Opening of Proceedings/Records
Lack of system accountability due to confidentiality, allowing system problems to go unaddressed;
Lack of "community standards" as to what is "enough" abuse/neglect to warrant intervention;
Public right of access to government functions, and lack of public confidence in "secret" system;
Confidentiality irrelevant; same information available from other (criminal or child custody) cases.
B. Juvenile Delinquency Cases
1. Pro-Confidentiality of Proceedings/Records
Opening would impede rehabilitation of juveniles by foreclosing future education/work options;
Opening would deter juveniles from admitting delinquency (a key to the treatment process);
Opening would cause public stigmatization of the child and family;
Insensitivity in the media about publishing names of children and families;
Renown in community (from publicizing name) could actually "reward" a child.
2. Pro-Opening of Proceedings/Records
Need to punish children, including shame of public knowledge of delinquency;
Need to protect community, allowing them to know who the "dangerous juveniles" are;
Need to ensure that courts and law enforcement officials are basing decisions on complete info.;
Lack of system accountability due to confidentiality, allowing system problems to go unaddressed;
Lack of "community standards" as to what is "enough" delinquency to warrant incarceration;
Public right of access to government functions, and lack of public confidence in "secret" system.
II. The NACC Position
After weighing the pros and cons of confidentiality in juvenile court, the NACC concludes that neither absolute confidentiality nor total opening of juvenile court records and proceedings would be appropriate. Rather, the presumption of confidentiality should remain, with the exception that judges should be allowed--on a case-by-case basis, after articulating findings that there would not be harm to the child, after an opportunity to be heard by child’s counsel, to open up proceedings and records to members of the media, researchers, and others with a bona fide interest in reporting on the juvenile court system (and related service systems) to the public. Such an opening up of proceedings and records, however, should only occur on the condition that the identity of any reporter of neglect/abuse, and the names, addresses, telephone numbers, photographs or other identifying information of the children and families in question NOT be made public in any way. In addition, the judge should be allowed to exclude the media and any other observers from child victim/witness testimony, and/or to provide for child victim/witness testimony via video or closed circuit television, and the judge may choose to close all or part of the proceeding. Since case law has clearly established that publication, by the media, of lawfully-obtained truthful information can not be restricted or punished, adequate safeguards would have to be adopted prior to opening proceedings or records to the media: redaction of identifying information from records, and prohibition of photography in the courtroom and refraining from using full names or other identifying information in proceedings viewed by the media. Finally, identifying records of adjudication of juvenile delinquency should be made available to juvenile and criminal courts and law enforcement officials, to ensure appropriate decision making with regard to subsequent delinquent or criminal offenses; such information shall not, however, be disseminated beyond those courts and law enforcement officials. Certain child protection records may be released subject to a Ritchie-type (Pennsylvania v. Ritchie, 480 US 39 (1987)) in camera inspection.
This position ensures that the major benefits of confidentiality are retained (see above), while the major benefits of opening juvenile court records and proceedings are also realized--especially the benefits of promoting accountability in the system, and promoting public understanding of the system. There are too many problems in the current child protection and juvenile justice systems--most notably, inadequate placements and services, and unjustifiable delays--to allow these systems to continue to operate outside the light of public scrutiny. The needs of each child and family in the system must be met in order to lessen their likelihood of re-entering the system. However, those needs are less likely to be met if the proceedings and records were fully opened to the public, for the reasons listed above. The NACC position is, therefore, to take a "middle ground" position, which allows for integration of the best elements of a fully confidential system and a fully open system. The NACC supports efforts to study the impacts of release of information regarding children’s cases on the children and families in question and on improvements in the system. The NACC supports independent evaluations of court systems to help ensure accountability (modeled after the federal general accounting office or state legislative auditors offices.)
NOTE: The only "pros" for open records/proceedings that are not met by the NACC’s position are, in delinquency cases, the "pros" of punishing the child and protecting the community. The NACC believes that both of those goals are better served through appropriate, individualized juvenile delinquency dispositions in each case, and NACC strongly advocates for improvements in the juvenile justice system that would ensure such appropriate, individualized juvenile delinquency dispositions.
NACC Policy Letter to Children's Defense Fund
Leave No Child Behind Act of 2001
The National Association of Counsel for Children (NACC) congratulates you on your work in developing and organizing around the Leave No Child Behind Act of 2001 (H.R. 1990, S. 940). The bill provides a marvelous vision of where child advocates can help take this nation in the coming years, to ensure the well-being of our children and our communities.
The NACC is national child advocacy and professional membership association, comprised primarily of attorneys who represent children. The NACC has a Policy Agenda that incorporates positions on issues related to child welfare, juvenile justice and child custody (available online at naccchildlaw.org). Several sections of the Act are, therefore, clearly within the purview of the NACC Policy Agenda: e.g., Title VIII relating to child welfare, Title X regarding juvenile justice, and the Younger Americans Act in Title IX. These provisions are excellent and the NACC fully endorses them.
There are many issues, however, in the Leave No Child Behind Act on which the NACC does not have an established policy: e.g., children’s health insurance expansion, environmental risks to children, Head Start and child care, tax credits for low-income parents, child support, TANF reauthorization, food stamps, housing assistance, etc. The NACC does not oppose these provisions in the Leave No Child Behind bills; we merely have no authority to act on them, and can not, therefore, take a position on the bill as a whole. Since we understand that the titles of the bill are expected to move in Congress as separate pieces (rather than as the omnibus bill that was introduced), we would like to offer our assistance to you in your efforts to move forward Title VIII, Title X, and the YAA in Title IX.
We look forward to working with you to ensure the enactment of the Leave No Child Behind legislative sections mentioned above. Thank you, again, for your visionary leadership on behalf of children, and your stalwart commitment to the policy advocacy and organizing that will make that vision a reality.
NACC BOARD OF DIRECTORS RESOLUTION No. 2
NACC Support of United Nations Convention on the Rights of The Child
Adopted: April 26, 2002
It is resolved by the NACC Board of Directors that the NACC supports the
ratification of the United Nations Convention on the Rights of the Child. These provisions are fundamentally important to the children of the United States and the world and thus, the NACC fully endorses ratification of the convention.
The NACC fully endorses ratification of the entire Convention and notes that the following Convention articles are of particular importance to the NACC:
Article 9 1. States will not separate child from parents against his will except where in best interests of child. 2. All parties under paragraph 1 will have opportunity to participate and make views known in proceeding. 3. States will respect right of child who is separated to maintain personal relationships and contact with parents unless contrary to child’s best interests.
Article 12 1. States will assure that children who are capable of forming their own views have the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. Child will be provided the opportunity to be heard in judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
Article 19 1. States will protect children from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, etc., while in the care of parents, or other person who cares for the child. 2. Such measure should include effective procedures for the establishment of social programs to support child and caretakers, and other forms of prevention and identification, reporting, referral, investigation, treatment, and as appropriate for judicial involvement.
Article 20 1. A child temporarily or permanently deprived of his family environment, or in whose own best interests cannot be allowed to remain in that environment, will be entitled to special protection and assistance provided by the state. 2. States will ensure alternative care for such children. 3. Such care will include foster placement, adoption or if necessary, placement in a suitable institution for the care of children. States will consider continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.
Article 21 States will recognized the system of adoption and will ensure that the best interests of the child are of paramount consideration.
Article 37 States will ensure that children will not be subjected to torture or other cruel, inhumane or degrading treatment. Neither capital punishment not life imprisonment without possibility of release shall be imposed on those under 18 years of age. Arrest, detention or imprisonment of a child will conform with the law and will be used only as a measure of last resort and for the shortest amount of time. Children in prison will be separated from adults unless it is considered in the child’s best interest not to do so. Child will have right to maintain contact with his family through correspondence and visits. Every child deprived of his liberty shall have right to prompt access to legal assistance as well as right to challenge the legality of the deprivation of liberty before a court or other competent authority.
Article 40 States recognize the right of every child accused or convicted of breaking the law be treated in a manner consistent with the promotion of the child’s sense of dignity and worth and will take account the child’s age and the desirability of the child assuming a constructive role in society.