International Children’s Rights Law: General Principles
This chapter introduces the general principles of the UN Convention on the Rights of the Child.
It defines “the child” under this law and discusses the usage of age as a sole indicator for offering protection for vulnerable human beings, as well as the dispute over the rights that the unborn child might have. The chapter also discusses the four guiding principles of the Convention: the right to nondiscrimination (Article 2); the principle of the best interests of the child (Article 3); the right to life, survival, and development (Article 6); and the right to participation (Article 12). The chapter further discusses the key rules of interpretation regarding the Convention, including how to apply a “child-centered approach” to matters concerning children and how to balance the rights of the child with the rights of others, including parents.
This chapter introduces the general principles of international children’s rights law.
It begins by outlining the issues in defining who is “the child” within this law, analyzing Article 1 of the UN Convention on the Rights of the Child (“the Convention” or “UNCRC”). The chapter then moves to analyze the four guiding principles of the Convention, as defined by the UN Committee on the Rights of the Child (CRC/GC/2003/5 2003, par 12): the right to non‐discrimination (Article 2); the principle of the best interests of the child (Article 3); the right to life, survival, and development (Article 6); and the right to participation (Article 12). The chapter concludes with a discussion of the key rules of interpretation regarding the Convention, including how to apply a “child-centered approach” to matters concerning children and how to balance the rights of the child with the rights of others, including parents.
2 Defining the “Child” under the Convention’s Jurisdiction
Eighteen years is set as the age of majority, but no minimum age, or any other parameter for that matter, is mentioned for determining when childhood begins. Further, States Parties are given the discretion to set an age of majority that is lower than 18. This power enables the modification of local laws so that setting an age lower than 18 will bring an earlier end to the special protections that the Convention provides for children in specific circumstances, such as in the labor market (the minimum age for employment) or under family law (the minimum age for marriage). However, while this discretion can be seen as giving States Parties the power to exclude children below the age of 18 from the Convention’s protection, it can also be seen to include an empowering dimension. States Parties can implement the Convention in nuanced ways in accordance with children’s different stages of development and their evolving capacities (CRC/C/GC/20 2016, par 1), while respecting their autonomy rights and agency before they turn 18 and become legal adults.
a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.
2.1 When Does Childhood Begin?
As mentioned Article 1 does not identify any minimum age for when childhood begins. This is an intentional omission given that the Convention’s drafters could not reach an agreement on this point. The main dispute was whether, as the Holy See and other Catholic countries suggested, Article 1 should define the moment of conception as the time when life begins, while other countries objected to this definition, not only because it lacks scientific grounding but also because it would mean that abortion would be considered a violation of the child’s right to life (Alston 1990, 158–162). It was therefore decided that the Convention remains silent on this issue (UN High Commissioner for Human Rights 2007), essentially leaving the decision to the discretion of States Parties. A few countries, such as Argentina and the United Kingdom, have therefore added reservations for their signatures concerning the issue of abortion (UNICEF 2007, 2).
There are various options for defining when childhood begins: at birth, at the moment of conception, or at any point in time during the intervening 9 months. Each starting point raises different legal and moral questions and challenges. The question whether a fetus should legally be considered a child, for example, gives rise not only to the tension between the child’s right to life and women’s right to abortion, but to other questions as well (Broughton 2016); for example, questions regarding genetic engineering and whether the unborn child’s right to health can ever justify, or require, genetic or human enhancement. In other words, if an unborn child is a rights-holder, does she have the right to change her physical appearance or metabolism, or to improve her physical capabilities and mental faculties, such as memory and intelligence? (Tamir 2016). Given that the unborn child cannot exercise these rights independently, there is a question of who should act on her behalf and who, essentially, has parental responsibilities (Article 18). Further, if the unborn child has a right to health (Article 24) and to development (Article 6(2)), then one can also ask whether her mother’s drug abuse, or even her mother’s condition of depression during pregnancy – each of which has proven short- and long-term implications on the unborn child’s health – constitutes a violation of these rights. One of the most difficult questions in this context is whether the unborn child has the right not to be born (Alston 1990). In Artavia Murillo et al (In Vitro Fertilization) v Costa Rica (2012), the Inter-American Court of Human Rights considered Costa Rica’s general prohibition of IVF, due to what was considered by the State as a risk of abuse of embryos in laboratories. The Inter-American Court ruled that while a fertilized egg has sufficient genetic information for potential development into a human being, it is not a child for the purposes of the UNCRC and subsequently does not hold the right to life (Artavia Murillo et al (In Vitro Fertilization) v Costa Rica 2012, 231–233; Barker 2016).
The flexibility of Article 1 in this respect does not seem to extend beyond the moment of a live birth. In other words, once a live baby is born, she becomes a subject for protection and a human rights agent under the Convention. The question now is when she will stop holding that status.
2.2 When Does Childhood End?
Article 1 sets a strict maximum with respect to the question of when childhood ends. This occurs at the age of 18, and not a moment later. However, a lower age can be set as well, as discussed earlier. In that sense, Article 1 entrenches the cultural and legal conception of childhood that prevailed in Western Europe during the second half of the twentieth century, precluding us from recognizing childhood as a period that can continue beyond the age of 18 – for example, until the age of 21, which used to be a common age of majority (and is still is, for example, in the United States, where anyone below the age of 21 cannot buy alcohol), or the age of 24, when neuroscientists tell us that the cortical development reaches its peak (Sowell et al. 2003, 310). Strictly ending childhood at 18 is also out of step with the reality of the lives of many young people today, mainly in the developed world, where it is more common for millennials to delay so-called “adult” practices – such as moving out of their parents’ homes, getting a job, and establishing their own nuclear families – until later in life.
2.3 Defining the Scope of the Convention’s Jurisdiction
The definition set out at Article 1 raises some important questions: In what circumstances could an age of majority that is lower than 18 be considered as being too low? Can a State Party determine, for example, that the age of criminal responsibility is 8 years old, or even 4 years old? Can 14 years old be set as the age when nationals can be conscripted into the armed forces? In what circumstances would denial of education constitute the denial of a child’s human rights to education and development? In other words, in what circumstances would setting the age of majority below 18 be considered a violation of Article 1?
Setting the age of majority at 2 or 3 years old undermines the core objective of the Convention: protecting children’s rights, given their unique vulnerability, and therefore should be considered as a violation of the Convention. But what about setting the age of majority at 9 or 11, or perhaps 13? In many societies, children at these ages move from the legal and social categories of “childhood” to “adolescence” and “adulthood”, and therefore excluding these children from certain provisions might be in line with Article 1 and the Convention’s overall objectives, which not only includes protection for provision and protection. The age of criminal responsibility is a good example to illuminate the challenges that this question raises. While the Convention does not set a minimum age of criminal responsibility (Article 40), the UN Committee on the Rights of the Child has determined that it should be the age of 12 at the youngest (CRC/C/GC/10 2007, par 31), as children below this age should not be held responsible in penal law proceedings. States Parties that set a lower age have been criticized for not complying with the Convention (CRC/C/AUS/CO/4 Australia 2012; CRC/C/GBR/CO/5 United Kingdom 2016), and the Committee recommends time and again that any treatment of young children should be in accordance with their best interests, and outside the juvenile justice system.
Childhood is not only a legal category but rather a socially constructed one (Prout and James 1997), and therefore the distinction between adults and children is fluid and depends on an individual’s personal development, as well as social, political, and religious contexts. Therefore, a case-by-case approach for setting a local age of majority can consider all the relevant factors in order to determine the appropriate parameters within a particular context. This includes socio-economic conditions, racial and ethnic diversity, and gender, as well as the four guiding principles of the Convention. In that sense, setting the age of majority at 18 is as arbitrary as setting it at 21 or 13. However, where setting the age of majority to lower than 18 undermines the objectives of the Convention, this should be deemed to be a violation of the Convention – for example, lowering the minimum age for employment to 13, while maintaining 15 as the age when compulsory education ends. This two-year overlap can bring into tension the child’s rights to education and to play and leisure (Articles 28, 29, and 31, respectively) and her autonomy rights. It also might conflict with the right to freedom from exploitation (Article 32). On the other hand, it might enable children to work in accordance with the law and to benefit from the protections that labor law can provide – especially with respect to the regulation of working hours and working conditions, and being paid the minimum wage. In that sense, enabling children to work at the age of 13 does not necessarily mean that they will stop attending school. Therefore, in circumstances where working and making a living at this age are necessary for the child’s survival and physical development – and maybe for those of her family as well – the legal structure that allows this might not be a violation of the Convention.
This example demonstrates the inherent tensions inside the Convention, including between universal and local interpretations and between paternalism (and protection) and liberation. A holistic view on the child’s socio-economic context and identity, and their intersections with a holistic interpretation of the Convention, can lead to conclusions that do not necessarily align with a paternalistic approach towards children’s rights and freedoms, or to a restrictive interpretation to the principle of the best interests of the child (more on this principle below).
3 The four Guiding Principles of the Convention
All branches of government, and indeed anyone who makes decisions that affect the lives and rights of children, should implement the UNCRC in accordance with its four guiding principles. These principles are the right to nondiscrimination (Article 2); the principle of the best interests of the child (Article 3); the right to life, survival, and development (Article 6); and the right to participation (Article 12) (CRC/GC/2003/5 2003, par 12). These principles require that any decision, law, court judgment, or policy considering children will protect and promote their right to life, survival, and development; will regard a child’s best interests as the primary consideration when balancing competing or conflicting rights and interests of other parties (such as parents, other adults, and the public); and will not discriminate against children. Finally, these principles require that a decision is only taken after a child is given the opportunity to meaningfully participate in the decision-making process and that the child also has the right to participate – when applicable – in the implementation process (Tisdall 2016).
3.1 Article 2 – The Right to Nondiscrimination
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, color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth, or other status.
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.
In times when migrant and asylum-seeking children are detained indefinitely, and deprived of access to basic social services and education, it is important to remember that status-based discrimination is not something of the past (Besson 2005). States Parties are under a clear duty not to discriminate against any child within their jurisdiction, irrespectively of her, or her parents’, status. Article 2 identifies 11 statuses, but also forbids discrimination on any “other status.” This means that discriminating against children based on unlisted grounds, such as sexual orientation or gender identity, also constitutes a violation of Article 2 (CRC/GC/2003/3 2003; CRC/GC/2003/4 2003; CRC/C/GC/11 2009; CRC/C/GC/15 2013; CRC/C/GC/20 2016; Sandberg 2015).
Differential treatment between children and adults, or between children, where there is no legitimate objective that justifies such difference, or the imposition of any non-proportional measure, constitutes a violation of Article 2. For example, establishing a lower minimum age for marriage for girls compared to boys, or having only gender-specific bathrooms available in schools and forbidding transgender children from using the bathroom that matches their gender identification, is violation of Article 2 (McGuire et al. 2010; Beemyn 2005). Other examples of discrimination include denying access to social services for ethnic minority children (Law 2010; Scheppers et al. 2006), or labelling all Roma children as having special needs in order to segregate them and provide them with substandard education (DH v Czech Republic 2007; Oršuš v Croatia 2010).
Notably, the Convention does not outlaw discrimination against children on the grounds of age. This means that different treatment of children that derives from their age is not prohibited by the Convention per se. Moreover, in instances where special or enhanced protection for the rights of children is required by the Convention, Article 2 justifies such a different treatment and even requires it in section 2.
Article 2(2) includes a positive dimension, which requires States Parties to actively respect and “take all appropriate measures to ensure that the child is protected” from discrimination (CRC/GC/2003/5 2003). In implementing the Convention, States Parties are therefore obligated to actively seek the abolition of any form of discrimination against children that exists in their laws and policies and to promote substantive equality for all children (Abramson 2008). This positive element requires more attention and consideration and can be invoked more often by children and their advocates. While in many countries, and with respect to many issues, much more work is needed in abolishing discriminatory practices, at the same time there is a need to account for the positive steps that states should take to actively facilitate equality between children. This includes dedicating more resources to those children who suffer most from discriminatory practices.
Article 2 extends the Convention’s jurisdiction to all children within the State Party’s jurisdiction, thus expanding the Convention’s jurisdiction beyond the State’s borders to include any child who lives in an area where the State Party controls her life – for example, in occupied territories (CRC/C/15/Add.195 Israel 2002, par 2; CRC/C/ISR/CO/2-4 Israel 2013, par 2).
3.2 Article 3 – The Best Interests of the Child
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.
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.
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.
The principle of best interests was the foundation of domestic child law, especially family law, in many countries long before the adoption of the Convention. Nonetheless, despite its rich history, it is often described as being too vague and open to subjective interpretations (Mnookin 1975), not least as its meaning depends on social and political context, and the subjective point of view of the judge, parent, or social worker who applies it (King and Piper 1995, 50). This discretion creates uncertainty and leaves room for manipulation, which can also lead to abuse, to the extent of being a euphemism to justify genocidal processes – for example, in the case of indigenous children during the “Stolen Generation” era in Australia (Douglas and Walsh 2013).
The principle of the child’s best interests is aimed at ensuring the full and effective enjoyment of all the rights recognized in the Convention. The importance of the best interests principle is demonstrated by the fact that it is embedded not only in Article 3 of the Convention, but in other Articles as well. These include Article 9 (separation from parents), Article 10 (family reunification), Article 18 (parental responsibilities), Article 20 (deprivation of family environment), Article 21 (adoption), Articles 37 and 40 (juvenile justice), and two of the three optional protocols of the Convention: Article 8 of the Optional Protocol on the sale of children, child prostitution, and child pornography and Articles 2 and 3 of the Optional Protocol on a communications procedure. In General Comment 14, the UN Committee on the Rights of the Child has addressed some of the structural problems with the implementation of this principle (CRC/C/GC/14 2013). First and foremost, the Committee stated that the principle has no predetermined meaning, and as a dynamic concept it should be interpreted in context. This interpretation requires determining what the issues at stake are; identifying the relevant interests and rights of a specific child, or children, in this situation; obtaining the child’s views; and assessing how the range of decisions that can be made will impact on the child’s interests. For example, the best interests of a 12-year-old girl in the context of deciding whether she should live with her mother or father postseparation might have different meaning from those of a 4-year-old girl in a similar situation. The difference might be even greater if the child were a boy instead of a girl, or a child of parents with a history of substance abuse, or a child with disabilities who requires special care. The child’s characteristics are not the only relevant consideration, and the socio-cultural background should be considered in the process of establishing what is indeed “best” for any specific child.
Article 3 is also a threefold concept (CRC/C/GC/14 2013, par 6). First, it is a substantive right of the child, and the child has a right to have her best interests assessed and taken as a primary consideration in order to reach a decision on the issue at stake. This right should be implemented whenever a decision is to be made concerning a child, or a group of children. It is suggested that, in this case, there is a need to distinguish between decisions that have a direct effect on a specific child or a known group of children and decisions that might have an indirect effect on children in general. Eekelaar argues that, regarding the former situation, the focus should be on achieving the best outcome for the child. In the latter situation, however, there is a need to accept situations in which the nature of an outcome is of such great importance that its achievement is justified irrespective of its indirect impact on children (Eekelaar 2016, 100). Second, it is an interpretative principle. The principle of the child’s best interests, while not the only consideration, should be prioritized over other considerations, as it is a primary consideration. Unlike Article 4 of the African Charter on the Rights and Welfare of the Child, which mandates that the principle is “the primary consideration” (emphasis added), thus giving it far more weight in comparison to other considerations, the Convention is satisfied with making it a primary consideration only. When taking these considerations together, and when more than one course of action is available, than the interpretation that most effectively serves the child’s best interests, and does not conflict with other provisions of the Convention (Tobin 2006, 287), should be preferred. Third, it is a procedural rule: any decision-making process should include an evaluation of the possible impacts (positive and negative alike) of the decision on the child or children concerned. The justification for making a specific decision should demonstrate how the best interests principle has been taken into account, including what criteria it is based on and how the child’s interests have been weighed against other considerations.
The best interests principle is relevant to “all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities, or legislative bodies.” Thus, anyone who makes a decision that has the potential to affect the best interests of a child, or children, should take this into consideration. The duty also applies to major national policies, such as education, public health, the environment, budgetary matters, and questions of war and peace (Freeman 2006; Nolan 2013; CRC/C/GC/14 2013).
Two related but nonetheless separate difficulties with this principle, as mentioned above, are its subjectivity and adults’ paternalism. The question of subjectivity relates to the interests and rights of the child that one might identify as being relevant to the situation, and the weight that they should be given. For example, in Australia the Family Law Act 1975 includes the disposition that it is in the child’s best interests to have “a meaningful relationship” with both parents (s 60CC(2)). A long list of other consideration is given as well, such as the child’s views, the nature of her relationship with her parents, her level of maturity, her gender, her lifestyle, and her background (s 60CC(3)). A similar checklist for what should be accounted for when assessing what is in the child’s best interests can be found in other jurisdictions – for example, in s 1(3) of the UK Children Act 1989. This sort of list attempts to eliminate, or at least minimize, the subjective element of the process of identifying what the relevant interests are, creating some uniformity, coherency, consistency, and predictability in the process. However, as every case should be decided based on the specific circumstances, and as many of these factors are open to interpretation, there is still a fairly large area for discretion, which means that the problem of subjectivity still exists.
Paternalism is another problem. As it is adults who determine what is best for the child, there is a risk that adults will try to enforce their own opinion while using the discourse of the best interests principle as a pretence. Freeman argues that given that adults, usually parents, bear the responsibility of safeguarding the best interests of their children, it is inevitable that they will be the ones who make the decision (Freeman 2007). However, in order to ensure that it is children’s interests that are being considered, rather than those of adults pretending to consider their children’s needs, he suggests that adults should follow the “liberal paternalism” model. Nolan suggests that the need to listen to the child should be added to this process, thus honoring her Article 12 rights (Nolan 2010). Similarly, the UN Committee on the Rights of the Child has suggested that “an adult’s judgment of a child’s best interests cannot override the obligation to respect all the child’s rights under the Convention” (CRC/C/GC/14 2013, par 4). This should include her Article 12 rights.
3.3 Article 6 – The Right to Life, Survival and Development
States Parties recognize that every child has the inherent right to life.
States Parties shall ensure to the maximum extent possible the survival and development of the child.
Article 6 comprises three separate, but nonetheless interdependent and indivisible, rights: the right to life, the right to survival, and the right to development. It protects the lifespan of the child from its beginning until the child reaches legal adulthood. Article 6 aims to ensure that the child is not deprived of her life, that she receives support for her physical survival, and that she is given the means necessary to develop her potential to the maximum.
Article 6 can be seen as a continuum, where its two ends represent the obligations that States Parties are under: the right to life is situated at the negative end, the right to development at the positive end, and the right to survival is in between. As more positive obligations are introduced as part of the right to life, we move along the continuum towards the right to survival, as the positive duties aim to ensure that children not only live, but also physically survive. The right to development is by and large a positive right, as it requires States Parties, and other duty-bearers, to provide the infrastructure that will enable every child to develop. The continuum also has a time dimension, where the protection for the right to life provides for immediate threats to the child’s life, and the right to (physical) survival tackles medium- and long-term risks.
The Right to Life
The right to life is at the core of international human rights law and is “basic to all human rights” (UNHRC General Comment 14 1984). Failing to protect the right to life makes the realization of all other human rights “lack meaning” (Villagrán-Morales v Guatemala 1999, par 144). Consistent with the interpretation of the right to life under international human rights law, Article 6(1) of the Convention should be interpreted in broad terms to include both negative and positive obligations. Such an interpretation was also argued for by the drafters, in order to enable the Convention to tackle various risk factors that can deprive a child of her life (UNCHR ‘Report of the Working Group’ 1988, par 21). The right to life protects children against both intentional and unintentional actions, as well as direct and indirect States’ actions. Such threats to children’s lives can occur, for example, when the police raid and kill street children, as happened at the Candelária massacre in Rio de Janeiro in 1993, or in places with high rates of infant mortality, infanticide, under-5 mortality, and suicide (CRC/GC/2003/4 2003). Capital punishment, even if permissible in national law, is unlawful when it comes to children (Article 37; S v Makwanyane 1995; Roper v Simmons 2005), not least as it deprives them of their lives.
Preventing deprivations of a child’s right to life requires more than a negative or hands-off approach. It obligates States Parties to take positive actions, including amending legislation, implementing policies, and providing adequate public services. The right to life is generally viewed as a negative obligation, meaning that a state cannot unlawfully take away life. It is often considered that the right to life means not that the state has an obligation to provide food to a starving person, but rather that it cannot prevent someone from eating. However, positive dimensions of the right to life include requiring States Parties to reduce infant mortality rates, to ensure adequate nutrition for children, to provide pre- and postnatal care, and to act against infanticide (Nowak 2005, 18–35).
The Convention protects the right to life in a number of additional articles that address specific threats to a child’s life. Violence, in all of its forms, is such a threat. It can be inflicted at home, or in public institutions such as schools, prisons, and hospitals (Articles 19 and 28; CRC/C/GC/13 2011). Children’s lives are threatened directly and indirectly in situations of armed conflict. Children can be directly killed, can be recruited as child soldiers, can lose their family members, or can be deprived of access to food, shelter, or health services. The short- and long-term traumas can have a negative impact on children’s survival and development. The indivisibility of Article 6 means that States Parties should make a postconflict rehabilitation program available to children (CRC/C/GC/8 2007; CRC/C/GC/13 2011; CRC/C/15/Add.79 Australia 1997, par 15; CRC/C/15/Add.84 Libya Arab Jamahiriya 1998, par 14; CRC/C/15/Add.25131 Austria 2005, par 40).
Harmful traditional practices can also undermine children’s right to health (Article 24), and some of these practices can also cause a child’s death or undermine her rights to survival and development. While Article 24 refrains from naming specific harmful practices (OHCHR 2007; Harris-Short 2003, 136–146), it seems that the giving of dowries (CRC/C/15/Add.74 Bangladesh 1997, par 15), early and forced marriage (CRC/C/15/Add.59 Cyprus 1996, par 16; CRC/C/TCD/CO/2 Republic of Chad 2009), female genital mutilation, amputation, scarring, burning and branding, infanticide, force feeding of girls, virginity testing (CRC/C/15/Add.106 Benin 1999, par 16; CRC/C/MDV/CO/3 Maldives 2007, par 42), accusations of witchcraft, and teeth extraction (CRC/C/GC/13 2011, par 29) are practices that have the potential to put the lives of children, especially girls, at high risk. It is worth noting that while abortion was a contested issue during the drafting process, it seems that the Committee does not address it often.
fatal injury; non-fatal injury (possibly leading to disability); physical health problems (including failure to thrive, later lung, heart and liver disease and sexually transmitted infections); cognitive impairment (including impaired school and work performance); psychological and emotional consequences (such as feelings of rejection and abandonment, impaired attachment, trauma, fear, anxiety, insecurity and shattered self-esteem); mental health problems (such as anxiety and depressive disorders, hallucinations, memory disturbances and suicide attempts); and health-risk behaviours (such as substance abuse and early initiation of sexual behaviour). [UNCRC General Comment 13, par 15]
During the Convention drafting process, it was suggested that the right to food should be explicitly mentioned as part of the child’s right to life (UNCHR ‘Draft Convention on the Rights of the Child’ 1988). Although these proposals were rejected, it is interesting to compare the UNCRC with Article 11 of the International Covenant on Economic, Social and Cultural Rights (“ICESCR”). The UN Committee on Economic, Social and Cultural Rights (“UNCESCR”) has drawn important connections between Article 11 of the ICESCR and the right to life (UNCESCR General Comment 15 2003; Solner 2007). The UNCESCR reads the right to food into the provision protecting the right to life, suggesting that these two are inherently connected because malnutrition and lack of adequate food can deprive a person of her right to life. Reading the right to food into Article 6(1) indicates not only that the right to life creates positive obligations on the State, but also that the implementation of the right, including the duty to provide food, is not subject to the specific limitation phrase found in Article 6(2): “maximum available resources.”
The Right to Survival and the Right to Development
The rights to survival and development are unique to children in the context of international human rights law, and no other UN human rights treaty acknowledges them. These rights have been recognized, however, at the regional and domestic levels. Examples include Article 5 of the African Charter on the Rights and Welfare of the Child, Article 39 of the Constitution of India, and Article 44 of the Constitution of Colombia.
The right to survival requires tackling preventable causes of child deaths, such as diseases, infections, and insufficient nutrition. As such, the right to survival carries positive obligations, requiring duty-bearers to take positive steps to enable the child to physically survive childhood. In that sense, tackling infant or under-5 mortality rates – two benchmarks in international development – is an obligation under both the right to life and the right to survival. The 1990 World Declaration on the Survival, Protection and Development of Children identifies malnutrition, disease, lack of clean water, inadequate sanitation, and the effects of drugs as the key threats to children’s survival. Basic education and literacy are then identified as “the most important contributions” to children’s development. The Committee on the Rights of the Child has identified some additional risk factors, including early childhood diseases such as acute respiratory infections and diarrhea, anemia, intestinal infectious diseases, bacterial infection, measles, and pneumonia (CRC/C/15/Add.261 Nepal 2005, par 60). These are all situated in the realm of the child’s health, as the right to survival focuses on the physical survival of the child. The World Declaration on the Survival, Protection and Development of Children suggests that tackling these risk factors requires enhancing child care and prenatal care; access to clear water and sanitation; eradicating hunger, malnutrition and famine; reducing illiteracy and providing education without discrimination; and tackling structural issues, such as apartheid, occupation, and discrimination against orphans and street children, children of migrant workers, displaced children, victims of abuse, “illegal” children and working children. Other long-term risk factors, such as poor sanitation and malnutrition (CRC/C/15/Add.24 Honduras 1994, par 15; CRC/C/15/Add.218 Madagascar 2003, par 47), are manifestations of poverty (CRC/C/15/Add.146 Ethiopia 2000, par 33; CRC/C/PRK/CO/4 Democratic People’s Republic of Korea 2009, par 44) and should be tackled holistically, via the lens of not only Article 6(2) but also Articles 27, 18, and 4.
It is therefore not always easy to clearly distinguish between the right to life, the right to survival, and the right to development. Many situations have multidimensional impacts on children’s lives and consequently affect more than one right. Nonetheless, an analytical distinction between these rights is important, not least because it dictates the level and kind of response needed. Using the continuum analogy once again, the right to life can be seen as a right that addresses the most immediate imperative, the right to survival is in the middle, and the right to development is the right that protects long-term threats to the child’s growth. All three components of Article 6 share the same objective, which is to ensure that the child lives through her childhood and can develop her personality to the fullest extent.
The implementation of the child’s right to development requires acknowledging the flexibility of the concept of “child development.” Child development has different meanings in psychology, social work, education, and other disciplines. Moreover, even within each discipline, there are various approaches to describe and understand what child development is, what can hinder it, and what can support a good, healthy or “normal” development (Hopkins 2005). Adopting any understanding of child development can therefore lead to a different interpretation of the right to development. In this process of interpretation, law “should not yield in favor of developmental knowledge” (Buss 2009). The Committee on the Rights of the Child has offered that the right to development be interpreted broadly as a holistic concept, “embracing the child’s physical, mental, spiritual, moral, psychological, and social development” (CRC/GC/2003/5 2003). Similarly, the Convention outlines eight developmental aspects in five different Articles (Articles 18, 23, 27, 29, and 32), as well as in Article 6. The right to development encompasses both the right to enjoy the process and the right to the outcome of the developmental process (Peleg 2013).
The right to development is a key right in enabling the child to have as many options as possible in living her life. The right should enable the child to be aware of the range of available options and to increase her choices and freedoms. It should empower her to have the necessary capabilities to choose and articulate her preferences, and it should ensure that these preferences are considered in a nondiscriminatory way. The child’s right to education reflects multiple, but partially overlapping, objectives, including, but not limited to, support for the child’s development. Teaching the child how to read and write has additional and intrinsic values. It enables the child to acquire new skills and knowledge and promotes her intellectual development.
The right to development is not just an encapsulation of other human rights that support children’s development. Nor is it merely the by-product of the realization of other human rights of the child, such as the right to education or health. Understanding the child’s right to development as a composite right means that it encompasses all development domains protected by the Convention, as well as the child’s rights to participation and nondiscrimination, with the aim of enabling the child to be free to fulfil her full potential. As there is no paradigmatic child, and there is no one singular and universal childhood (Freeman 2012), there is also no singular right way to develop. Rather, different children experience diverse childhoods and processes of development. Its interpretation should therefore maintain space to accommodate the variety of children’s life experiences.
As a guiding principle, the right to development is a litmus test for scrutinizing actions that have an impact on the lives and development of children, both as a collective and as individuals. When a duty-bearer takes an action, not only must that action respect children’s rights to nondiscrimination and participation, and the principle of best interests of the child, it also must respect children’s fundamental and overarching right to development (cf Maurás 2011).
3.4 Article 12 – The Right to Participation
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.
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.
Recognizing that children have a right to participate in decisions concerning their lives is one of the most innovative, and constantly challenged, rights of the Convention. No other binding UN human rights convention includes such a right. The 1986 Declaration on the Right to Development (Articles 1 and 2) and the 2007 Declaration on the Rights of Indigenous Peoples (Article 6) include a similar right, as both declarations share the UNCRC’s objective of giving voice and empowering marginalized groups in society.
Article 12 transforms the image of children under the law, conceptualizing them as active agents who should have a voice in their lives and departing from the paternalistic perception of children as “human becoming” (Lee 2001). It is an act of inclusion that recognizes children as citizens in their communities: their family, their local community, and their political community (Nolan 2010). Respecting children’s voices means that adults will find it more difficult to ignore them. It gives children a sense of belonging, it empowers them, and it reshuffles the power structure in society between adults and children.
Therefore, implementing the right to participation requires a shift in the way we think about childhood and children, about their capacities and capabilities, and about their role in society. According to Article 12, every child should have the opportunity to form a view, and to express it freely. The Article gives children a seat at the table where decisions are being made, including decisions about their own lives – for example, decisions about their education (Lansdown et al. 2014; Quennerstedt 2015) and health (Freeman 2006; Ruhe et al. 2016) – but also decisions about policies that affect children in general. The implementation process requires answering four questions: Who can participate? When does participation happen? What weight should be given to children’s views? How can a child participate?
Who can Participate?
The Convention suggests that any child “who is capable of forming his or her own views” should be given the opportunity to exercise her right to participation. Therefore, the working assumption should be that any child, irrespectively of her age, who has the capability to form her own views should enjoy this right (CRC/C/GC/12 2009, pars 20–21). The burden of proof for demonstrating that a specific child lacks the capacity to participate lies with those who would deny the child the opportunity to enjoy her right. This proposition nonetheless leaves much power with adults, as it is adults who can challenge a child’s capacity and who ultimately have the final word in deciding whether or not a child is lacking capacity.
When Does Participation Happen?
Children should be given the opportunity to participate “in all matters affecting the child.” This includes decisions with an immediate effect on a specific child’s life, such as those relating to health or postparental separation (such as questions of custody and residency), as very few decisions have no impact on children. It is difficult to think of any decision that parents take that does not affect their children, or any policy decisions that will not have an impact on children – if only in the long run. Article 12 is not confined to decisions with an immediate effect, or to decisions that directly affect a child or children. It also concerns decisions that might have a secondary effect on children. In that sense, a decision whether or not to build a new hospital, or where to build it, has a wide range of effects on children – from broad questions of public spending (Thukral 2013) to a more direct set of questions concerning access to health care, and the extent to which this new hospital will cater to children’s rights and needs. Therefore, children should be able to participate in the process of deciding whether to build the hospital, and in its design (Cf Dimoulias 2017).
This implication of Article 12 might deter some adults or might seem to be so broad that it becomes meaningless. After all, some adults might argue, involving children in this sort of decision is not practical and is even ridiculous. Although the practical implementation of the right might be challenging, this does not undermine the normative grounds of the right, or narrow its scope. It is the duty of adults to overcome such barriers so that children can enjoy all of their Convention rights to the fullest extent.
What Weight should Be Given to children’s Views?
The power to control the practical implications of Article 12 and their effects on children’s lives remains with adults, as the weight that children’s views should receive depends on their age and maturity. Age is a fixed number and it does not give an accurate indication of an individual’s child cognitive capacity and her ability to comprehend the complexity of a decision and its implications. It is often used as a benchmark to decide whether children will have the opportunity to participate, rather than as an indication of the weight that their views should be given. Instead, age should be used not as a barrier to decide whether or not a child can participate, but rather as a factor that ought to come into play later, while deciding how much weight her views should be given when making a decision. The question of “maturity” is even more problematic. It inherently assumes that, as people grow older, their capacity to make “good” or “rational” decisions increases. Simultaneously, tolerance of their mistakes increases as well. In other words, respect for people’s autonomy increases as they grow up, to the extent that the law enables them to make decisions that might prove to be disastrous. Children do not occupy a similar space. The weight that their input will receive is subject to a merit-based scrutiny of their opinion. Adults will cast judgment on the “maturity” of the views expressed by a child – as, for example, happens too often in the field of medical treatments, children’s views will be respected only if they align with the views of adults (Cave 2014).
Avoiding this paternalism requires assessing the age and the maturity of the individual child, after she has been given the opportunity to participate. These two criteria should not be gatekeepers for the realization of this right. Nor should they be used as a means to pay lip service to the participation process, where adults have no real intention of listening to what children say because the children are “too young” or “immature.”
How Can a Child Participate?
Participation can take different forms. While adults might consider oral conversation or written submissions as the only proper modes of communication, Article 12 does not restrict children to these formats. Instead, children should be given the opportunity to express their views by other means as well, including both verbally and nonverbally. This could involve drawing, dancing, murmurs, or any other format with which the child feels comfortable, if it is adequate for her cognitive capabilities. As Alderson and her colleagues have shown, even premature babies have the capability, and the wish, to express their views. Their preferred mode of expression is body language (and crying) (Alderson et al. 2005). The challenge for adults is, therefore, to create, facilitate and respect these spaces of participation, without being prejudiced towards them, and to listen to the results (Thomas 2007).
Implementing the right to participation requires adults to take some preliminary steps. This includes informing children that a decision is needed; that all the appropriate information, including the available alternatives, will be presented to them; and that their input is invited (Lundy 2007). It is then up to the child to decide whether or not she would like to exercise her right and, if she would, whether she should be heard directly or indirectly through a representative.
A meaningful participation process should be more than a token exercise (Thomas 2007, 211; Lundy 2007). Children should be informed and consulted, and their views should be obtained. However, Article 12 gives children not the power to make a decision, but rather the entitlement to be involved in the decision-making process. Read together with Article 5 and the evolving capacities principles (see below), Article 12 requires that once children have sufficient intelligence and understanding of the issues involved, known as the “Gillick company test” (Gillick v West Norfolk 1986), then they also obtain the autonomous power to make decisions about their lives. Children can participate directly or indirectly, using a representative to deliver their views.
The participation exercise does not end when a child expresses her views. Respecting children’s rights in this context requires decision-makers to inform children about the decision that was made and to explain what weight the children’s views were given, and why (CRC/C/GC/12 2009).
4 General Rules of Interpretation
The Convention is a holistic document, and the rights that it recognizes are interdependent and indivisible (Article 4). Therefore, situations concerning children should be analyzed not in isolation, but rather in light of any right that might be relevant and the Convention’s four guiding principles (CRC/GC/2003/5 2003, par 18). This analytical process should also take a child-centered approach. A child-centered approach is a conceptual and procedural approach that positions the child and her rights at the heart of the implementation process. Based on Tobin’s substantive child’s rights approach (Tobin 2009, 2011), it is helpful to differentiate between three interrelated principles: a conceptual principle, a methodological principle, and an empowerment principle. The conceptual principle requires positioning the child and her rights at the center of analysis and examining the relevant policy, law, or judicial decision from a child’s rights point of view. The main question that should be asked is this: What rights of the child (or children) are going to be affected by the decision, and how can they best be promoted in a holistic way? The procedural principle requires ensuring that children’s views are considered in all stages of the decision-making process. The empowerment principle requires the decision-maker to ground their reasoning in a child’s rights analysis (Peleg 2018).
In the context of litigation, for example, the question of restoring contact between children and their parents should focus on the life circumstances of the children involved in the proceedings and how any decision affects their best interests (Article 3), as well as their rights to development (Article 6), an adequate standard of living (Article 27), contact with both parents (Article 9), and freedom from abuse (Article 19). The children’s voices should also be heard in the process, if they choose to participate (Article 12). The final decision should balance the rights and interests of others, including the child’s parents, against her individual rights. In addition, a child-friendly version of the judgment should be made available. For example, this could be a letter written by the judge and directed at the child, explaining the decision, or a slightly shorter version of the original judgment, written with less legal jargon (see Lancashire County Council v M 2016; Re A (Letter to a Young Person) 2017). Nonverbal methods of delivering a child-friendly judgment should be considered too. While judges and other legal professionals might feel uncomfortable with such a suggestion, in the belief that it will trivialize or undermine the profession, I would suggest that child-friendly judgments can be delivered in the form of cartoons, or short video clips. This would give children better access to the judgment in a more convenient way. The judgment could be accessed by them without the need to ask adults for help, or to have adults act as intermediaries.
A child-centered approach is paramount not only to issues concerning individual children. Nor is it confined to subject matters that are traditionally associated with children, such as family or welfare law. Rather, it is relevant to any decision that affects children and their rights, either as individuals or as a group. As noted by the UN Committee in General Comment 19, “prioritizing children’s rights in budgets, at both national and subnational levels contributes not only to realizing those rights, but also to long-lasting positive impacts on future economic growth, sustainable and inclusive development, and social cohesion” (CRC/C/GC/19 2016, par 12). Conducting a child impact assessment is a necessary step in analyzing the influence that the budget will have on children and the enjoyment of their rights (Nolan 2013, 264). A child-centered approach also requires paying attention to children’s vulnerability in certain circumstances. For example, victims of sexual and other abuse who are required to testify in court against the accused (often their father or another member of the family) are likely to find the process intimidating and re-traumatizing, and so can be reluctant to participate in it. To mitigate this, the State of New South Wales in Australia has introduced a pre-recording scheme that enables the child to give her testimony in the absence of the jury (if any) and to be provided with the assistance of a children’s champion whose role is to facilitate the communication of, and with, the child and the court (Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot) Bill 2015 (NSW)).
Applying a child-centered approach does not suggest that the rights and interests of parents are ignored. However, from the child’s point of view, her parents are first and foremost duty-bearers. They are expected to fulfil their obligation to care for her “development and upbringing” (Article 18), rather than being considered as rights-holders vis-à-vis the child. In that sense, the Convention defines a one-way relationship between children and their parents (and society more broadly). This contrasts with other approaches that see parents as rights-holders, or even the approach taken by the African Charter on the Rights and Welfare of the Child at Article 31, which establishes a two-way relationship that positions children not only as rights-holders but also as duty-bearers. The Charter suggests that children, in accordance with their age and abilities, need to respect their parents and elders and to assist them in cases of need. The child is also expected to serve her community and preserve its cohesion. This emphasis on mutual duties and obligations in the African context does condition the realization of the rights of children (Sloth-Nielsen and Mezmur 2009), but does so in a way that recognizes the complex web of relationships and duties within the family and society.
The implementation of the Convention is subject to the evolving capacities principle (Article 5). This principle, which can be seen as the “fifth” guiding principle of the Convention (Hanson and Lundy 2017, 303–306), limits parental authority when the child is able to exercise her autonomy and provides the child with greater autonomy as she grows and develops her capacity to “exercise” her rights. The ability of a child to make decisions prior to the age of majority is a good example to demonstrate this point. Notably, courts in England and Wales tend to interpret this principle in narrow terms (Freeman 2006; Cave 2014), respecting children’s capacity to consent to medical treatment but rarely their desire to act against the opinion of medical professionals and refuse it. In Australia too, courts struggle with the task of assessing a child’s competency and how to balance this against the contesting opinions of parents or doctors (X v Sydney Children’s Hospital 2013; Cattanach v Harrison 2016; Re Shane 2013; Minister for Health v AS 2004). Despite these challenges, as well as difficulties in implementation, the principle is clear: as a child grows and develops, respect for her autonomy should concurrently increase (CRC/C/GC/20 2016).
Last, the interpretation of the Convention should follow the rules set out in Article 31 of the Vienna Convention on the Law of Treaties. This includes the requirement to interpret the Convention in good faith, in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of their objective and purpose. These requirements can create some challenges, not least because the Convention is aging, and might therefore lose it relevancy to the children of today, or tomorrow (Veerman 2010). Irrespectively of its age, the most important thing to remember is the Convention’s main objective, which is to treat children as agents of their own rights. Consequently, any paternalistic interpretation of the Convention should be rejected in favor of an interpretation that empowers children and facilitates meaningful enjoyment of their childhood and their rights.
Recognizing children as autonomous rights-holders does not mean that they must then be neglected and required to advocate for their rights on their own (Hafen and Hafen 1996). The Convention weaves together both protectionist and empowering elements, and there is a constant need to balance these multiple and diverging aims. Ultimately, no one-size-fits-all approach can ever be taken when implementing the Convention in order to advocate for a child’s rights and best interests. Rather, each situation must be examined in terms of the rights and the unique needs, interests, and evolving capacities of the particular child at hand. Upholding children’s rights and best interests must always be a paramount consideration.
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