Rights of children. Principles, obligations, duty-beers.

Why do we
need a special human rights instrument for children? – 21.9.23

Overview

• Convention on the Rights of the Child (CRC)

• Why CRC?
• “Child” and socio-cultural perspectives
• Monitoring and complaints
• CRC rights and basic principles
• Discussion of the UK two child-rule and concluding observations to states
CRC

• History
– Declaration of the Rights of the Child (League of Nations,1929)
– Declaration of the Rights of the Child (UN, 1959)

• CRC was adopted by the UN in 1989 was the primary international CR treaty
– Most widely ratified human rights treaty Ratification involves a country formally committing to implementing the
provisions of the treaty within its national legal framework.
– Regional instruments. various regions around the world have developed regional instruments or agreements to
complement and reinforce the principles outlined in the CRC. while aligning with the broader
goals of the CRC. Examples include regional conventions, declarations, or protocols that focus on
• Why a specific treaty for children? children's rights within a particular geographical context.

– In accordance with the general human rights focus on particular (vulnerable)

groups, or by adopting group-specific instruments.
CRC values

• “Recalling that, in the Universal Declaration of Human Rights, the United Nations has
proclaimed that childhood is entitled to special care and assistance …
• Convinced that the family, as the fundamental group of society and the natural environment
for the growth and well-being of all its members and particularly children, should be afforded
the necessary protection and assistance so that it can fully assume its responsibilities within
the community…
• Bearing in mind that, as indicated in the Declaration of the Rights of the Child, "the child, by
reason of his physical and mental immaturity, needs special safeguards and care, including
appropriate legal protection, before as well as after birth…
• Recognizing that, in all countries in the world, there are children living in exceptionally difficult
conditions, and that such children need special consideration".
Childhood

• Traditional understandings
– Adult rationality and capability vs child innocence, irrationality and incapability
• New understandings of childhood and children´s development in science (sociology,
psychology…)
– inspired the understandings and content of the CRC.

“Child”
• “[f]or the purposes of the present Convention, a child means every human being below the
age of eighteen years unless under the law applicable to the child, majority is attained
earlier.” The European Court of Human Rights and the European
• Margin of appreciation, why? Commission of Human Rights have found that a foetus is not a
• Exception in Art. 38 person protected by the right to life
• When does “childhood” start? Protection of the unborn?
• Different age groups (newborn, youth…)
The CRC dont have an indicator regasrding the point at which childhood comences
CRC Article 38

• 1. States Parties undertake to respect and to ensure respect for rules of international
humanitarian law applicable to them in armed conflicts which are relevant to the child.
• 2. States Parties shall take all feasible measures to ensure that persons who have not attained
the age of fifteen years do not take a direct part in hostilities.
• 3. States Parties shall refrain from recruiting any person who has not attained the age of
fifteen years into their armed forces. In recruiting among those persons who have attained
the age of fifteen years but who have not attained the age of eighteen years, States Parties
shall endeavour to give priority to those who are oldest.
• 4. In accordance with their obligations under international humanitarian law to protect the
civilian population in armed conflicts, States Parties shall take all feasible measures to ensure
protection and care of children who are affected by an armed conflict.

Optional protocol

Optional protocol on the involvement of children in armed conflict raises the age for direct
participation in hostilities and compulsory recruitment to 18. 25 May 2000, General Assembly
resolution A/RES/54/263
Is indeed influenced by Western and European perspectives on childhood. The values, norms, and cultural understandings
Cultural perspectives embedded in the convention reflect the historical and cultural context in which it was developed. This raises the question of
whether the CRC, with its origins in a specific cultural milieu, tends to promote a universal understanding of childhood that is
inherently Western.

• Is the CRC a product of a Western or European understanding of childhood?

 The challenge lies in ensuring that the rights outlined in the CRC are not perceived as culturally biased or as a one-size-fits-all model
that might not resonate with the diverse cultural values and practices of different societies.
– Does it universalize a Western understanding of childhood?
– Reservations and cultural relativism (object and purpose of the CRC)
– CRC and regional human rights systems such as the African Charter on the Rights and Welfare of the Child. These
regional systems take into account the unique cultural and regional contexts,
– Gaps and difficulties of enforcement allowing for more nuanced interpretations and applications of CR.
CRC faces challenges due to gaps in understanding and variations in the cultural interpretations of rights. The disparities in economic, social, and political
contexts across different regions contribute to difficulties in achieving consistent and effective enforcement of children's rights as outlined in the CRC
Monitoring and complaints

• State reporting process to CRC expert committee

• Optional protocol opening for complaints by individual children or groups of children.
• Not collective complaints

Individual complaints

• “1. Communications may be submitted by or on behalf of an individual or group of individuals,

within the jurisdiction of a State party, claiming to be victims of a violation by that State
party of any of the rights set forth in any of the following instruments to which that State
is a party:
• The Convention;
• The Optional Protocol to the Convention on the sale of children, child prostitution and child
pornography.
• The Optional Protocol to the Convention on the involvement of children in armed conflict.
• 2. Where a communication is submitted on behalf of an individual or group of individuals, this
shall be with their consent unless the author can justify acting on their behalf without such
consent.”

CRC-OP3, Article 5

CRC Rights

• All types of rights: Civil, political, economic, social, cultural

• “States Parties shall undertake all appropriate legislative, administrative, and other measures
for the implementation of the rights recognized in the present Convention. With regard to
economic, social and cultural rights, States Parties shall undertake such measures to the
maximum extent of their available resources and, where needed, within the framework of
international co-operation.” (Article 4)

Principles The recognition of certain principles that allow for a child-centred approach to human rights.
 • Non-discrimination Article 2 provides an open-ended list of
• Best interest of the child grounds upon which unjustified distinction is
prohibited. Furthermore, it provides
• Right to life, survival and development protection for a child from discrimina- tion
not only on grounds related to the child’s
• Right to respect for the views of the child (participation) status, but also on grounds related to the
Non-discrimination status of the child’s parents.

• “1. States Parties shall respect and ensure the rights set forth in the present Convention to
each child within their jurisdiction without discrimination of any kind, irrespective of the
child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political
or other opinion, national, ethnic or social origin, property, disability, birth or other status.
• 2. States Parties shall take all appropriate measures to ensure that the child is protected
against all forms of discrimination or punishment on the basis of the status, activities,
expressed opinions, or beliefs of the child's parents, legal guardians, or family members.”
The CRC Committee has stated that the principle of non- discrimination does not only require a prohibition of
CRC, Article 2 unjustified differential treatment, but also requires ‘states to actively identify individual children and groups of
children the recognition and realization of whose rights may demand special measures’.
Age discrimination?

• Discrimination due to age in relation to other children or adults?

– When should equal treatment be the norm?
– When is it justified to use age as a reason for differential treatment?

A young person A baby

Best interest of the child ART 3 CRC

• “1. In all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best interests
of the child shall be a primary consideration.
 • 2. States Parties undertake to ensure the child such protection and care as is necessary for
his or her well-being, taking into account the rights and duties of his or her parents, legal
guardians, or other individuals legally responsible for him or her, and, to this end, shall take
all appropriate legislative and administrative measures.
• 3. States Parties shall ensure that the institutions, services and facilities responsible for the
care or protection of children shall conform with the standards established by competent
authorities, particularly in the areas of safety, health, in the number and suitability of their
staff, as well as competent supervision.”

Elements

• Best interest assessment in concrete cases

– Must assess whether it is taken into account as a primary consideration. for the decision makers
• Included in all legal interpretation
– Choose interpretations most compatible with the child´s best interests.
• Procedural requirements
– Evaluation of impact on the child/children concerned, justify that the best interest-
requirement is taken into account Defining ‘best interests’ is by no means an easy task. In its General
• Child participation essential Comment on best interests, the CRC Committee has stated that the
concept is ‘complex’, ‘flexible’, and ‘adaptable’. ‘It should be adjusted
and defined on an individual basis, according to the specific
UK two-child rule. situation of the child or children concerned, taking into
consideration their personal con- text, situation and needs.
• Best interest assessment?
• Taken into account as a primary consideration?
• Impact evaluation?

Right to life, survival, and development

• “1. States Parties recognize that every child has the inherent right to life.
• 2. States Parties shall ensure to the maximum extent possible the survival and development
of the child.”

CRC Article 6

• Right to life
– protection from accidents, violence, harmful practices, death penalty, traffic safety.

• Survival and development

 – protection from violence, malnutrition, access to necessary health preconditions and
services…
– mental, physical, spiritual … development
– socio-economic duties

Child participation the right to be heard

“1. States Parties shall assure to the child who is capable of forming his or her own views 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. For this purpose, the child shall in particular be provided the opportunity to be heard in
any 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.”

CRC Article 12
That children may require assistance to exercise their rights, this provision recognizes that
Capacity of the child the need for such assistance will vary according to the ‘evolving capacities of the child’.

• Not a requirement of comprehensive knowledge, but the child must have

• “Sufficient understanding to be capable of forming er or his own views on the matter”

Age and maturity

• “An obligation for the States parties to assess the capacity of the child to form an autonomous
opinion to the greatest extent possible”
• “The capacity of a child to express her or his views on issues in a reasonable and independent
manner.”
• Age alone not crucial
• Case-by-case examination
• Not self-determination

Child-parent relationship

• “The more a child knows and understands, the more his or her parent will have to transform
direction and guidance into reminders and gradually to an exchange on an equal footing”

Relation between Articles 3 and 12.

 • A tension between securing the best interests of the child and the child´s right to participate
in decisions affecting him or her?
• Developments of child participation in both private and social affairs

Child autonomy

• ‘Parents shall steadily extend the child’s right to make his or her own decisions as he or she
gets older and until he or she reaches 18 years.’
– Norwegian law grants children more autonomy than the CRC
– by others, but a right to make his/her own decisions. But when?
• Not only a right to participate in decisions made.

Parental responsibility.

• ” The child is entitled to care and consideration from those who have parental responsibility.
These persons have the right and duty to make decisions for the child in personal matters …
Parental responsibility shall be exercised on the basis of the child´s interests and needs.”

Duty of health care personnel

• ” Health personnel shall conduct their work in accordance with professional responsibility and
considerate care …”

CRC and state obligations

• States Parties shall undertake all appropriate legislative, administrative, and other measures
for the implementation of the rights recognized in the present Convention. With regard to
 economic, social and cultural rights, States Parties shall undertake such measures to the
maximum extent of their available resources and, where needed, within the framework of
international co- operation.”
– Respect, protect, fulfil
– Core obligations, progressive realization (also by supporting parents and families…)
– Non-retrogression
CRC Article 4

Duty-bearers

• States and public authorities

• Administrative bodies and decision makers
• Courts
• Public and private organizations
• Parents and legal guardians
See CRC Article 3 espcially

Student activity on the rights of children

• 1) Explore the last concluding observations (CO) concerning your home country from the
Committee on the Rights of the Child: Which principles and themes are highlighted? Select
a few related to Articles 3, 6 and 12 (principles) and themes (health, education, welfare,
particular groups…)
• What does the Committee point out as problems? Which recommendations are given? Prepare
a small summary or a few comments, individually or in groups.
• Internet search: crc committee concluding observations (your country)
• 2) Read the article on the UK two-child rule for social benefits (‘Done because we are too
menny’: the two-child rule …), and prepare a few points for discussion from a child´s rights
perspective

Children´s right to social security ART 26 CRC

• “1. States Parties shall recognize for every child the right to benefit from social security,
including social insurance, and shall take the necessary measures to achieve the full realization
of this right in accordance with their national law.
• 2. The benefits should, where appropriate, be granted, taking into account the resources and
the circumstances of the child and persons having responsibility for the maintenance of the
child, as well as any other consideration relevant to an application for benefits made by or
on behalf of the child.”
Best interest requirement

• “In all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best interests
of the child shall be a primary consideration.”
CRC Article 3(1)

Elements

• Best interest assessment in concrete cases

– Must assess whether it is taken into account as a primary consideration.
• Included in all legal interpretation
– Choose interpretations most compatible with the child´s best interests.
• Procedural requirements
– Evaluation of impact on the child/children concerned, justify that the best interest-
requirement is taken into account.
• Child participation essential

Non-discrimination

• “States Parties shall take all appropriate measures to ensure that the child is protected
against all forms of discrimination or punishment on the basis of the status, activities,
expressed opinions, or beliefs of the child's parents…”
CRC Article 2(2)
Social security as property for children?

• “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No
one shall be deprived of his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of international law.”

Article 1(1) in Protocol 1 to ECHR: Should it be interpreted in light of CRC Art. 3?

Two child-rule and discrimination.

• Discrimination of
– Children in general
– children in larger households (families with more than two children)
– children in families where contraception is unacceptable, unavailable or failed.
Two-child rule and ECHR Article 8

• Influence on choice about family size

• Effects on children´s development
• Increase of child poverty
• Illness, anxiety, malnutrition, stress, homelessness, family problems, reduced school
attendance…